Vertical Federalism or Partisanship? New York, Double Jeopardy & President Trump

by J. Wesley Leckrone

Vertical federalism refers to when the federal government checks the actions (or inactions) of a state or states and vice versa. In the same way that separations of powers among the three branches of the federal government was designed to check power, the federal and state governments are designed to check each other. This can take place when one government violates fundamental rights or when governments are not taking action on important areas of public policy. The concept has gained attention in recent years as states have sued the federal government over policies like the Affordable Care Act and “sanctuary cities” have started to resist some forms of cooperation with federal immigration enforcement.

Legislators in New York are invoking the cause of vertical federalism as they debate eliminating a law related to double jeopardy. The New York Times reports that

The New York State Assembly passed a bill on Tuesday that would allow state prosecutors to pursue charges against any individual granted a presidential pardon for similar federal crimes, closing a loophole that lawmakers said could be exploited by President Trump in a bid to indemnify former associates.

The bill, which has already passed the State Senate and has the support of Gov. Andrew M. Cuomo, would exempt the state’s so-called double jeopardy law from cases involving presidential pardons, something supporters say is necessary to stave off a possible abuse of Mr. Trump’s pardon power.

The article goes on to say

Like about two dozen other states, New York has forbidden state prosecutions on similar charges after a federal pardon, something that the new bill will change, according to Senator Todd Kaminsky, a former federal prosecutor who is the sponsor in that chamber.

“Either in the past or in a continuing manner, the president has talked about using the pardon power in a corrupt way to undermine the rule of law,” Mr. Kaminsky said. “And I think New York doesn’t have to sit by and let the capricious use of the pardon power tie its hands.”

I watched comments that Assemblyman Joseph Lentol (D-Brooklyn) made on the floor on May 21 concerning his support for the bill. Here’s his take on vertical federalism:

We never thought we would ever have to worry about a state being involved in the review of presidential power in these United States of ours. However, its sort of ironic that we are learning again the importance of states rights. Some of you know that concept. When we see inaction at the federal level regarding the abuse of power we know we also see at the same time inaction at the federal level to deal with the abuse of that power. And so I think that the Attorney General acted properly when proposing a bill like this to be prepared to act where the federal government in its checks and balances has not yet acted already….

When the federal government stumbles and does nothing then the state of New York will fly into action.

Republicans felt it was more politics than a defense of federalism. According to the Times they saw it as a political ploy designed to attack President Trump:

“We’re asked to set aside that fundamental concept of fairness and equity, not because we’re faced with any actual situation, but a hypothetical situation,” said Assemblyman Andy Goodell, a Republican from Jamestown, N.Y.

That argument was echoed by the outgoing state Republican Party chairman, Edward F. Cox, who said that the State Legislature was suffering from “Trump derangement syndrome.”