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.”

Cars, California and Federalism

by Catherine Long

A common theme among the blog posts we have discussed throughout the semester has been President Trump’s dedication to reversing most Obama-era policies in relation to the environment. This article continues this theme, however there is also an added element of federalism at work. Through the 1970 Clean Air Act, the EPA has worked to reduce the emissions from cars by setting stricter fuel economy standards. Under President Obama, great strides were taken to ensure this would be the case until 2025, almost ten years after his departure. The 1970 Clean Air Act also allowed for waivers to be given to states who wanted to set their own fuel economy standards. California has participated in this system and wishes to set stricter fuel economy standards in order to encourage growth in the electric car sector. However, upon taking office, President Trump assured the automobile industry that he along with the head of the EPA Scott Pruitt would review the standards set by the EPA under President Obama and that he would set the standards at a level that would allow cars to be made in America again. Appealing to the growth of the economy and an increase in American manufacturing has been a tactic President Trump has used since his Presidential campaign. However, California plans to move ahead with its stricter standards. This creates a dilemma because car manufacturers have to decide whether to follow California’s standards in order for their cars to be bought in that state or follow the much lower national standards and potentially lose buyers in California. In order to solve this dilemma, California has tried to negotiate with the Trump administration by stating that they will lower their standards if Trump prolongs the Obama-era standards until 2030. This article offers an interesting insight into how states are attempting to influence environmental policy under a President who doesn’t subscribe to environmentally friendly policy.

https://www.washingtonpost.com/news/energy-environment/wp/2018/03/13/epa-administrator-pruitt-says-california-is-not-the-arbiter-of-the-nations-emission-standards/?utm_term=.e260c6f1af6d

Expanding Pre-School Education: An Issue with Federalism

by Katrina Kelly

Widener University Political Science Major

There has been much talk in Congress about Obama’s latest plan to expand pre-school education at the federal level. The President wants to use federal money to support state-based pre-school programs around the country by hiring higher paying teachers that undergo yearly evaluations and making it more affordable and accessible to people. The new early education plan by the President seeks to increase the number of children in pre-school, especially from low income households. This plan could cost up to ten billion dollars a year, which is almost a tenth of the entire current federal education budget. There is a major split in the House on this issue between Democrats and Republicans.

House GOP conservatives are worried that expanding an already large entitlement program is a slippery-slop towards even bigger government. One of the arguments against expanding this program is that there are already numerous early education programs at the state level as well as the federal level. Many in Congress want to know what exactly this proposed program will do differently than the ones that already exist. Another House GOP fear, justifiably so, is an increase in the ever expanding deficit by this program.  Many feel that there is not enough evidence that large-scale pre-school programs like the one Obama proposes will even be of much significance for children in the long run.

On the other side of the aisle, many House Democrats are supportive of Obama’s early education expansion program. Many agree with the President that high quality pre-school education makes a distinct and significant difference in children’s lives over the long run. Many feel that children are our future and we need to cultivate them starting at the earliest age possible. There have been numerous tests and studies shown that the earlier a child starts school, the more acclimated he or she in society as well an overall improvement in the long-run in terms of education and progressive development.

This comes down to the age old question in Congress between the Democrats and the GOP: how much or how little should government be involved? This program will be one of the biggest expansions of education at the federal level in over a decade. The conservative members of the House Republicans feel that this is a matter for the states to decide coupled with the fact that there are already many early education programs offered at the state and local level. Whereas, House Democrats feel that this is not an over-step by the federal government, more of a partnership with the states on an important issue. Federalism arguments at its best!

Increase Gas Tax to Fund Infrastructure Reform?

by Scott Hill

Widener University Political Science Major

With everything that is happening in the world, it is easy to lose sight of some of the important domestic issues. On Thursday, February 14th Former Pennsylvania Governor Ed Rendell asked Congress to consider a few options concerning our infrastructure. He suggested increasing the gas tax, allowing states to toll more on roads and providing more grants for multi-state projects that can help fund improvements to our infrastructure. Rendell says that “moving goods is one of the keys to American competitiveness, and we are getting our brains beat in”. Opponents to this are claiming that instead of looking for ways to cost-effectively improve conditions Rendell is jumping straight to increasing taxes. One controversial issue raised by Rendell is the institution of a user fee based on miles traveled in individual cars. This user fee can end up flirting with an invasion of privacy and will not be popular with working people who require a long commutes.

I think that it makes sense to use an increase in gas tax to fund infrastructure reform since transportation will be directly funding itself. I also see how a user fee can directly counteract the diminishing returns of a gas tax due to the increasing efficiency of cars. However, in-order to track movements in miles and to remove user error a tracking system will be placed in each car documenting movements, this can easily be viewed as an invasion of privacy. When it comes to increasing the gas tax however, Rendell says that “We need to figure out what is right…What we need for the future of this country…and accept the political consequences”. He goes on to say that there is not an American out there that does not want a better infrastructure, because each and every citizen benefits from it in some way.

Why the Philadelphia Eagles Need a Little Federalism

by J. Wesley Leckrone

Assistant Professor, Political Science

Widener University

The end of the Andy Reid Era in Philadelphia cannot come soon enough. Perhaps the current sad state of the Eagles could have been avoided if Jeffrey Lurie would have heeded the philosophy of the Founders that designed the American governmental system.

As Jeff McLane noted in yesterday’s Philadelphia Inquirer:

In 1999, when Lurie last looked for a head coach, he had director of football operations Tom Modrak and team president Joe Banner to aid him. The new coach would have to defer to Modrak in personnel matters and Banner when it came to contracts and the salary cap.

Now most of the power is consolidated in Andy Reid’s hands and the responsibility for the decline of the franchise rests in a pattern of ill conceived decisions that he has made over the last several years. Reid made the decision to bring Michael Vick on as the franchise quarterback. Reid hired a defensive line coach with a gimmicky “wide-nine” formation before hiring a defensive coordinator. He then promoted his offensive line coach to defensive coordinator despite the fact that Juan Castillo had no defensive experience in the NFL. Castillo was replaced by another gimmicky offensive line coach, Howard Mudd, who’s scheme has failed to protect the quarterback. The list goes on….

John Boruk of CSN Philly defines the problem:

Clearly, the on-the-field product has suffered as a result of poor drafting, bad free-agent signings and an overall lack of identity, and the dual responsibilities Reid currently juggles should be separated moving forward.  Giving one person that much power and authoritative control hasn’t produced the desired results.

The Founders warned against such concentration of power and designed a system of government that would prevent one person from obtaining too much decision-making capability over the country. James Madison described these safeguards in Federalist Paper #51. The first method of dispersing powers is adding checks and balances to our system of separation of powers. Subsequently each of the three branches of government (legislative, executive, judiciary) are given the power to impede the activities of the others. Madison argues that

it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

The Founders realized that separation of powers was not enough because over time one branch could consolidate power over the others. Consequently they put several checks in place to avoid this scenario. Madison states

the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others….Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

Federalism provides the second method to prevent the consolidation of power. Madison makes the argument that while

all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

The problem for the Philadelphia Eagles was that they initially created a system that divided power between equal and rival interests within their decision-making apparatus. However, as Andy Reid achieved success Jeffrey Lurie was lulled into believing that the head coach should administer the reigns of the organization with little or no checks. Reid installed staff dedicated to his football philosophy that were unwilling to expend their capital to challenge him because they were his proteges. Madison specifically warned against this:

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal.

The solution is to FIRE ANDY and create a new system of organizational governance that divides coaching, personnel, and contract negotiations into separate and rival interests. Of course, that could lead to the mischief of factions. But that’s an argument for another day when we examine Federalist #10.

Two Views on the Secession Petitions

The following are two opinions of the petition drive for Secession by Widener University American Government Students Danny Griffin and Erica Sharp:

A Divided America

Danny Griffin

A surprising amount of Americans have signed petitions to secede from the United States in recent weeks. The online proposition has found the most popularity in Texas, attaining over 100,000 signatures. The petition has versions founded by supporters in all 50 states, however. Some people feel that those who have signed the petition should be stripped of their citizenship and deported, while others assert that these people should be allowed to secede as long as they pay their share of the national debt.

In my opinion, I find the statements about stripping citizenship of the political dissenters to be outrageous. How can such harsh treatment for free speech be justified? If such a course of action was ever taken, what kind of example would it serve as to others? People would be terrified to speak out against government. This nation was founded on the principle that the people should be able to voice their opinions without fear of any repercussions from the government.

As for the statement about paying a share of the national debt, I also find it to be deluded. Many of these people are probably signing the petition simply to voice their disgust at President Obama winning a second term. Therefore, they most likely voted for Romney, which in their eyes would have significantly helped reduce debt. In effect, these people would feel that they did their part already in attempting to negate national debt.

In regard to the entire situation, I see nothing wrong. I am doubtful that many of these people are serious about seceding from the US; they just hope to see a change in the way the country is being run. If these citizens especially did not want to be a part of America anymore, they move and relinquish citizenship. I see the acts as perfectly valid executions of free speech.

Will We Secede Again?

Erica Sharp

Throughout an election there are some that are in full support of either their candidate or their political party. It seems some people have taken this idea to the extreme, most people have heard or seen someone state that, “if so and so doesn’t win the election I’m moving to Canada.” This idea is completely irrelevant and is just some people’s simplistic way of showing how they feel when their candidate does not win. Unfortunately, this was not the case this presidential election period. Citizens have returned back to the old idea of if we don’t agree with who’s running the government and his ideas we should have our state secede from the Union. As we know this idea worked extremely well the last time it was implemented, leading our nation into a Civil War.

So which states feel this way and what do they want to happen and why? The list of states continues to rise, now consisting of, Alabama, Arkansas, Colorado, Florida, Georgia, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, New Jersey, New York, North Carolina, North Dakota, Oregon, South Carolina, Tennessee and Texas. Their idea is that they want to withdraw formally from the membership of our federal union. People from these states have begun supporting petitions to secede from the U.S. right after the President was announced to win himself a second term in office. They need to gain at least 25,000 signatures in 30 days or less for the administration to grant a formal review. As of right now Texas seems to be the closest to its goal with 23,000 signatures already. But then getting back to it why do they want to secede in the first place? It seems these people that are petitioning truly believe that this government has become in their mind “destructive,” and they see it as there right as American citizens to alter or abolish it and create a new form of government.

This idea and the large support being shown towards it is beginning to scare some of the other citizens of this nations. The fears should really be put to rest right now because as it is seen these states are very reliant, probably more than they know, on the government and what it does for them. Without this help these states wouldn’t survive. So although there is always that slim chance of a state seceding it shouldn’t be a main concern for now.

Romney’s Loss?

by Bridget Hicks

Widener University American Government Student

Election day is tomorrow and voters seem to be siding with President Obama, at least on the east coast. In the aftermath of Sandy’s tragic visit, Obama seems to be the only feasible candidate for to help the country. After the hurricane, the east coast, especially in my home state of New Jersey, was devastated. How is it possible for Governor Christy to spearhead the state’s recovery alone?

Obama paid a visit to the places destroyed by Hurricane Sandy to present his support for the recovery of the towns and people who were distraught by this storm. He came to lend a helping hand to Governor Christy. Where was the other candidate? Where was Governor Romney?

Romney is staying strong with his word. Romney supports more state power, with smaller federal government power. He believes the states should be in charge of disaster recovery. As an in-land resident of New Jersey I was fortunate not to experience the complete and utter destruction in the coastal areas. However, my home, as well as others around me, also experienced destruction. Seeing President Obama going around to New Jersey citizens and offering his support was comforting. Obama is someone I would want to see leading the country. He is a man who is here to help in times of need and does not just assume his role to give states powers that he should also take responsibility for. With the election so close, this trip to New Jersey for Obama was a huge help not only to gain support from the people of the east coast but everywhere. When people hear of this, they think “what would I expect if I were in that situation?” They would want a president who is there for them and ready to come help. Romney seriously damaged his campaign by not coming over to the east coast and acknowledging this disaster while Obama capitalized on this opportunity.