States & Mask Requirements

by Emily Buchter

          Carl Smith of Governing: The Future of States and Localities reported that states are cracking down on their penalties regarding face mask requirements. Since the beginning, there has been quite a bit of controversy surrounding the Corona virus pertaining to the use of face masks or coverings. Back in March officials stressed that people did not need to wear face masks because they were not effective. After only about a month, President Trump released an official statement that people should wear a face mask in public as recommended by the CDC. 

The policies surrounding the Corona virus became mainly decisions of the individual state governments. Many states decided on the use of face masks when in public while also social distancing. Although a high percentage of people are following the state guidelines, there are still many that refuse. Some states are now making the refusal to wear a mask a crime. New Jersey is making anti-maskers punishable by a fine of $500 or 30 days in prison. Pennsylvania is another state requiring masks and anyone who refuses will be charged with a second-degree misdemeanor of reckless endangerment that can result in death or serious injury. 

In my opinion, this pandemic is too political when the focus should be on the public welfare. A lot of people are still convinced that COVID-19 is a hoax. I believe the pandemic should be treated with caution because it is better to be safe. State guidelines must be obeyed, even if disagreed with. The new penalties will help enforce the use of masks, but are the charges too harsh? What is your opinion on COVID-19 and all it has entailed?

Smith, Carl. “Lawmakers Get Tough with Mask Requirements: Legislative Watch.” Governing, 2020, www.governing.com/next/Lawmakers-Get-Tough-with-Mask-Requirements-Legislative-Watch.html.

Universities & COVID

by Danielle Campbell

With going back to school, many colleges had to face corona virus face to face. Many schools limited their on campus housing, some shut down their schools completely. Others, allowed everything to return to normal. NYU, New York University was one of the colleges who allowed their students to return to campus normally. They have policies to keep mask on at all times but aren’t enforcing them. As big gathers keep happening and parties keep popping up. Many kids keep contracting COVID-19 causing dorms to be shut down in an effort to control the virus and quarantine the residences in that building. On September 13th a party was held were 4 freshmen from the same dorm attended and came in contact with the corona virus. The building was put on mandatory lockdown to stop the spread of the virus. This wouldn’t be so bad if NYU was prepared for this event. In late August, two NYU students exposed the college by showing the meals they receive during quarantine. Some only received a granola bar while others received moldy apples or meals 3 hours late. The university isn’t following student’s food preferences and ignoring their pleads to do so. For example, the university is giving pork and various meats to people who can’t consume them due to religious beliefs or dietary restrictions.  The following link is examples of how bad these conditions are in these locked down dorms in NYU. Many students are fighting for a tuition refund as it cost 53,000 to attend a year.

Blog link : https://www.fox5ny.com/news/new-york-university-dorm-locked-down-due-to-coronavirus-cases

Food examples: https://www.dailymail.co.uk/news/article-8651105/NYU-students-quarantining-ahead-classes-complain-lackluster-meals.html

Fed’s Change to Muni Program to Help More PA Counties

by J. Wesley Leckrone

Heather Long of the Washington Post reported that the Federal Reserve is changing the population threshold for its Municipal Liquidity Facility program (MLF). The program is a joint effort between the Federal Reserve and the Treasury Department that will purchase up to $500 billion in municipal bonds. MLF was designed to ease the liquidity crisis in muni bonds in the early stages of the COVID-19 shutdowns. Institutional investors were selling off muni bonds, which increased borrowing costs for state and local governments at the same time that they needed to borrow due to increased spending on COVID-19 related programs and a rapid decline in revenue (click here for an overview from the Fed).  The program covers debt from states, counties and cities, as well as multi-state entities formed through interstate compacts. Any of these eligible governments can use the MLF program to borrow on behalf of their political subdivisions.

When the program was announced on April 9, only counties with populations of 2 million or more and cities of 1 million were eligible (although states could borrow on behalf of other subdivisions within their boundaries). According to Census data, no counties, and only the city of Philadelphia (1.58 million) would qualify under these standards. On April 27 the Fed lowered the population thresholds to 500,000 for counties and 250,000 for cities. This did not have a profound effect on the eligible cities in Pennsylvania, as only Pittsburgh (301,048) met the new standards. However Pennsylvania counties fared better as the following were added to the list:

Allegheny (1.22 million)

Montgomery (828,604)

Bucks (628,195)

Delaware (564,751)

Lancaster (543,557)

Chester (522,046)

For more on the MLF program see this article from the New York Federal Reserve. Here’s a WaPo article on problems with the population limits.

 

 

 

 

Federalism and Hotel “Resort Fees”

The Wall Street Journal is reporting that there is a growing movement in government to regulate hotel fees that are often initially hidden from consumers (click here for the story). Scott McCartney writes states that

[r]esort fees, now more than 10 years old, started with hotels basically mimicking airline baggage fees. But they go a giant step further by making the add-on fee mandatory—and making it hard to find.

On their websites and third-party booking sites, hotels post a room rate for customers to consider, then add an extra charge labeled in a variety of obtuse ways. That could mean a resort fee, destination fee, urban destination fee, amenity fee or facility fee. One boutique hotel in New York calls its fee a NYC Mandatory Facility Hotel Fee, making it look like one more government tax on hotel guests. It isn’t.

In some cases the fees may increase the cost of staying at the hotel by two to three times the advertised price.

The added fees are not just a consumer issue. Local governments may also be missing out on revenue because of the way hotels collect taxes on the fees. Attorney Lauren Wolfe states that

resort fees in New York and other places are a bit of a tax dodge for hotels, too. Instead of collecting the 14.75% hotel tax on the fees, some hotels tax them at the 8.875% regular sales tax rate.

So far Nebraska and the District of Columbia have filed suit against the Hilton and Marriott hotel chains over the fees. However, this may be one case where state and local governments acting as “laboratories of democracy” may not be enough. It could take the federal government to step in and ban the fees nation-wide in order to address the issue. According to Wolfe, federal legislation might

have a chance of passing because the industry can’t find a way out of the resort fee cycle on its own and might look to Congress to force better behavior.

 

50th Anniversary of Publius: The Journal of Federalism

This year marks the 50th anniversary of Publius: The Journal of Federalism. The world’s top journal on federalism was launched by Daniel Elazar at Temple University’s Center for the Study of Federalism. To commemorate the anniversary, current Publius Editor John Dinan has written an introduction to the current issue that you can read here.

Double Jeopardy and SCOTUS Visions of Federalism

by J. Wesley Leckrone

This week the United States Supreme Court ruled that both the federal and state governments could prosecute a person for the same crime. The case, Gamble v. US, provided an opportunity for SCOTUS to rule that this constituted double jeopardy. However, a 7-2 majority upheld decades of precedent and reiterated the principle of the federal and state governments being “separate sovereigns”. If you’re interested in the facts of the case please read this article in the New York Times.

What I find most interesting is the internal debate between the majority (represented by Justice Alito’s opinion) and the dissenting opinions of Justices Ginsburg and Gorsuch on the meaning and purposes of American federalism. Below are edited excerpts related to this discussion from the opinions in Gamble v. US. Click here for the full text of the opinions.

Justice Alito:

It is true that the Republic is “‘ONE WHOLE,’”…(opinion of GINSBURG, J.) and …(opinion of GORSUCH, J.). But there is a difference between the whole and a single part, and that difference underlies decisions as foundational to our legal system as McCulloch v. Maryland, 4 Wheat. 316 (1819). There, in terms so directly relevant as to seem presciently tailored to answer this very objection, Chief Justice Marshall distinguished precisely between “the people of a State” and “[t]he people of all the States,”…; between the “sovereignty which the people of a single state possess” and the sovereign powers “conferred by the people of the United States on the government of the Union,”…; and thus between “the action of a part”…. In short, McCulloch’s famous holding that a State may not tax the national bank rested on a recognition that the States and the Nation have different “interests” and “right[s].”… One strains to imagine a clearer statement of the premises of our dual-sovereignty rule, or a more authoritative source. The United States is a federal republic; it is not, contrary to JUSTICE GORSUCH’s suggestion, post, at 10–11, a unitary state like the United Kingdom.

Gamble and the dissents lodge a second objection to this line of reasoning. They suggest that because the division of federal and state power was meant to promote liberty, it cannot support a rule that exposes Gamble to a second sentence…(opinion of GINSBURG, J.) and…(opinion of GORSUCH, J.). This argument fundamentally misunderstands the governmental structure established by our Constitution. Our federal system advances individual liberty in many ways. Among other things, it limits the powers of the Federal Government and protects certain basic liberties from infringement. But because the powers of the Federal Government and the States often overlap, allowing both to regulate often results in two layers of regulation. Taxation is an example that comes immediately to mind. It is also not at all uncommon for the Federal Government to permit activities that a State chooses to forbid or heavily restrict—for example, gambling and the sale of alcohol. And a State may choose to legalize an activity that federal law prohibits, such as the sale of marijuana. So while our system of federalism is fundamental to the protection of liberty, it does not always maximize individual liberty at the expense of other interests. And it is thus quite extraordinary to say that the venerable dual-sovereignty doctrine represents a “‘desecrat[ion]’” of federalism… (opinion of GORSUCH, J.).

Justice Ginsburg:

The United States and its constituent States, unlike foreign nations, are “kindred systems,” “parts of ONE WHOLE.”…. They compose one people, bound by an overriding Federal Constitution. Within that “WHOLE,” the Federal and State Governments should be disabled from accomplishing together “what neither government [could] do alone—prosecute an ordinary citizen twice for the same offence.”…. The notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal system. The doctrine treats governments as sovereign, with state power to prosecute carried over from years predating the Constitution…. In the system established by the Federal Constitution, however, “ultimate sovereignty” resides in the governed…. Insofar as a crime offends the “peace and dignity” of a sovereign…that “sovereign” is the people, the “original fountain of all legitimate authority,”…. States may be separate, but their populations are part of the people composing the United States. In our “compound republic,” the division of authority between the United States and the States was meant to…operate as “a double security [for] the rights of the people.”…. The separate sovereigns doctrine, however, scarcely shores up people’s rights. Instead, it invokes federalism to withhold liberty.

Justice Gorsuch:

The Court seems to assume that sovereignty in this country belongs to the state and federal governments, much as it once belonged to the King of England. But as Chief Justice Marshall explained, “[t]he government of the Union . . . is emphatically, and truly, a government of the people,” and all sovereignty “emanates from them.” Alexander Hamilton put the point this way: “[T]he national and State systems are to be regarded” not as different sovereigns foreign to one another but “as ONE WHOLE.” Under our Constitution, the federal and state governments are but two expressions of a single and sovereign people.

And any remaining doubt about whether the dissenting States and the federal government are truly separate sovereigns was ultimately “resolved by war.”

From its mistaken premise, the Court continues to the flawed conclusion that the federal and state governments can successively prosecute the same person for the same offense. This turns the point of our federal experiment on its head. When the “ONE WHOLE” people of the United States assigned different aspects of their sovereign power to the federal and state governments, they sought not to multiply governmental power but to limit it. As this Court has explained, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.” Yet today’s Court invokes federalism not to protect individual liberty but to threaten it, allowing two governments to achieve together an objective denied to each.

As Justice Black understood, the Court’s view today “misuse[s] and desecrat[es] . . . the concept” of federalism. For “it is just as much an affront to . . . human freedom for a man to be punished twice for the same offense” by two parts of the people’s government “as it would be for one . . . to throw him in prison twice for the offense.”