Good morning, and welcome to our panel discussion this morning
that's provocatively titled, "Dr.
Strange Law or How I Learned to Stop Worrying and Love
States' Rights," sponsored by the class of 1977.
A little louder?
This is as loud as it gets.
Wait a minute.
Is that better?
Hello.
Like this?
No, the mic's not on.
Yeah, that's what I'm thinking.
The mics are on.
They're on?
OK, all right.
Can you hear me now?
OK, I'm gonna have to-- yeah, I'm
gonna have to engage in some contortionism here.
Oh, like this?
How is this?
Better.
Good.
We're trending well.
I just want to quickly introduce the panel.
Right on this stage, up here before you
is an assemblage of some of the finest legal thinkers anywhere,
and I'm up here, too.
The moderator originally intended
for this panel, who's an absolutely brilliant law school
professor and also a member of the class of '77
was ultimately unable to participate.
So for no apparent reason, I was asked
to moderate instead and let me just assure you,
if any one of you had tossed a chair out your office window,
you could have hit someone at random better qualified
for this job than I.
Let me introduce our panel.
I'm gonna do this in alphabetical order.
First, Harlan Levy is a partner at the law firm
of Boies Schiller Flexner LLP.
He is a preeminent lawyer in New York
for governmental investigations and litigation,
business litigation, and white collar criminal defense.
Called one of the best legal minds in the state
by New York Attorney General Eric Schneiderman,
he's an Amherst class of 1977, by the way,
Harlan has been described as a lawyer of quote "patience,
integrity, and judgment," by the New York Law Journal.
He served as Chief Deputy Attorney General
of the state of New York, the second highest
ranking official in that office from 2011 to '15.
He played a critical role in overseeing
a number of significant investigations by that office,
and they resulted in several multibillion dollar
settlements.
Mr. Levy is President-elect of the Federal Bar Council Inn
of Court and the former Chair of the Council
on Criminal Justice of the New York City Bar Association.
He received in 2016, John Jay McCloy,
who happens to be Amherst class of 2016,
there's a pattern developing here--
McCloy Award from the fund for modern courts and the 2016
Public Service Award from Citizens Union.
After graduating from Amherst in 1977
and then from Columbia Law School,
Mr. Levy served as a prosecutor in the office
of Manhattan District Attorney Robert
Morgenthau, class of 1941.
This is what you call a light motif.
An early national leader in the use of DNA to free the innocent
and convict the guilty, he authored
And the Blood Cried Out, which is a wonderful book,
very popular book on the use of DNA evidence in the courtroom,
reviewed as superb by the Wall Street Journal
and as riveting by Publisher's Weekly.
But Mr. Levy's greatest accomplishments
are seated right over there, his magnificent 12-year-old
children, Caitlin and Gavin.
And they're sitting with their wonderful mother, Justice--
I guess I should have done the math, Amherst class, whatever.
Should have kept it rolling.
And they're sitting with their wonderful mother, Justice Kelly
O'Neill Levy of the Supreme Court First Judicial District
in New York, and that's Harlan Levy.
Next, Dr. Austin D. Sarat is the William Nelson Cromwell
Professor of Jurisprudence and Political Science
and the Associate Dean of the faculty
here at Amherst College.
He has written, co-written, or edited more than 50 books
in the fields of law and political science.
Professor Sarat received a BA from Providence College, an MA
and PhD from the University of Wisconsin Madison,
and a JD from the Yale Law School.
In 2008, Providence College conferred an Honorary Degree
of Laws upon Professor Sarat for being,
quote "an internationally renowned scholar
of capital punishment and for his pioneering work
in the development of legal study in the liberal arts."
He's also received an honorary degree, of course,
from Amherst.
While Professor Sarat's primary research focus
is the use of the death penalty, his pedagogical interests
are wide ranging.
His popular Amherst seminar titled
"Murder" has been profiled in the New York Times.
He's also an enthusiastic teacher of first year students,
regularly offering an introduction
to law jurisprudence and social thought and a first year
seminar titled "Secrets and Lies."
He also co-teaches a course on law and film.
Professor Sarat's description of his teaching
seems the very distillate of the Amherst experience.
He writes, quote, "these courses, like almost everything
I teach, are deeply interdisciplinary, moving out
from the study of law or political science
to draw on philosophy, literature, sociology,
and history.
My hope is to take students on a journey
from the familiar to the strange, that
is, to start with something about which my students are
familiar and using the insights of different disciplines
to illuminate the complexity of those familiar subjects,"
close quote.
And that's why we all came to Amherst in a nutshell.
Professor Sarat has won numerous awards and recognitions
for his writing, his scholarship, his teaching,
and his mentoring.
And just by happenstance, one of my offspring,
Amherst class of 2006, fondly remembers
Professor Sarat quote, "running all over the Red Room,"
and that he was an excellent adviser, who
quote "really cares about his students,"
and that's Professor Sarat.
No more running anymore.
Well, we're all disappointed to hear that.
And last, but certainly not least, Paul M. Smith,
Amherst class of 1976, is Vice President
of Litigation and Strategy at the Campaign Legal
Center in Washington, DC.
Mr. Smith joined CLC in January 2017,
where he works directly with its talented team of litigators
to protect and improve our democracy
through innovative litigation strategies.
Paul has more than three decades of experience litigating
a wide range of cases.
He has argued before the US Supreme Court 19 times
and secured numerous victories, including
in important cases advancing civil liberties two
examples are Lawrence versus Texas, the landmark gay rights
case, and Brown versus Entertainment Merchants
Association, which established First Amendment
rights for those who produce and sell video games.
In addition, Mr. Smith has argued a number of important
voting rights cases at the Supreme Court,
including those involving issues of partisan gerrymandering,
the legality of Texas's mid-decade redrawing
of career-- he sort of has made a cottage industry about
kicking around my state, if you'll notice in here--
and the constitutionality of a voter identification law.
He's also served as counsel for interested parties
who filed in several key campaign finance cases.
Mr. Smith has been honored nationally
by a variety of publications and organizations.
Named Chambers USA as one of the country's
leading lawyers in appellate litigation media
and entertainment law and First Amendment litigation
for multiple years.
Washingtonian magazine recognized him
as one of Washington's top lawyers.
He also received, from the ABA, the Thurgood Marshall Award
from their section of individual rights and responsibilities
for his work promoting civil legal rights
and civil liberties.
Mr. Smith previously served as a partner
at the law firm of Jenner and Block.
In addition to his work at CLC--
I don't know where he gets time for this-- he also
teaches as a distinguished visitor from practice
at Georgetown University Law Center.
Mr. Smith is a member and former chair
of the National Board of Directors of the American
Constitution Society and a former board member
and co-chair of Lambda Legal.
He has been a tireless and dedicated volunteer on behalf
of Amherst and currently serves on the Amherst College
Board of Trustees.
A truly remarkable group, so thank you
all very much for being here.
Let's start off just by providing everyone
with kind of a base level of information about the topic,
and what we're gonna be talking about today is states' rights.
And what I'd like to ask is for Paul
to give us all just kind of a summary of what we meant
in the past by that term, states' rights,
and how that term has changed.
Well, I guess why the title of this thing
is learning to love states' rights,
Dr. Strangelove, whatever it is, is because the term states'
rights has a long and rather sinister history going back
to the pre-civil war era, when it was invoked primarily
by Southern states trying to resist any effort
to eliminate slavery.
And it was associated with the Nullification Doctrine.
The doctrine of states had the power
to decide what was constitutional
and what wasn't and could essentially, basically plot
their own course.
One would have thought a lot of that extreme version of states'
rights was ended at the time of the Civil War, the passage
of the post-civil war amendments,
but it made a kind of reappearance, a little cameo
reappearance, in the '50s and '60s
after the Brown versus Board of Education case
in the era of massive resistance to school integration.
But I think it's important to sort of step back and say
the concept of federalism and the idea
that states have rights is nothing controversial about it
in another sense.
It's sort of built into the structure of the Constitution
that the federal government has limited powers
and the states have all the residual powers.
And in more recent times, it's been the Supreme Court itself
that has been pushing federalism, protecting
federalism, and using it, in a lot of cases,
to push back against efforts at the national level
to promote civil rights and other important federal
policies.
For example, most recently, perhaps the big Affordable Care
Act case was all about whether or not
the federal government was invading
the province of the states, both by imposing the health
insurance mandate and then also, by forcing states to expand
their Medicaid programs.
And so this is a constant recurring theme
in American history and part of our basic governmental
structure.
And I think what we're talking about here
today is that for most of our history, most of the time,
I think, people trying to push a more progressive agenda
have viewed states as kind of an unfortunate
barrier and the whole idea of federalism as a problem.
At least, most of the time in recent decades,
it's been at the federal level--
federal, the Congress, the President, the Supreme Court--
that people have been trying to achieve these more
progressive agendas and the idea that states
retain residual authority has been viewed as a problem.
And so in some ways, what we have now is a reversal,
and that's what we're here to talk about.
In the year of Trump, where we have an Administration
and a Congress that's not exactly
pushing universal health care, not exactly pushing
civil rights civil liberties, and environmental causes,
and a lot of other things, suddenly states
are being rediscovered by those of us who, in the past,
have probably viewed them as more
of an inconvenience than anything else.
And so I hope that's a good introduction
of where we're going.
That's a fabulous introduction.
Harlen, can you build on that, and give
some examples of states advancing this new version
of state's rights?
Yes, I'm happy to, but I'm going to take just one moment
to introduce our moderator because Frank Stevenson is
no slouch.
Let me tell you.
Despite his apparent modesty.
I don't know.
Frank is currently the President of the Texas Bar Association,
is the former President of the Dallas Bar Association,
and he is a very distinguished lawyer
in a major firm, Locke Lord, and he's a wonderful person.
So if you don't my mind my indulging myself, Frank.
I'm gonna talk about three watershed moments
from the last decade, involving litigation
by the states against the federal government.
As Frank mentioned, I was formerly
in the New York AG's office.
People in AGs' offices right now,
particularly democratic AGs, sense both enormous pressure
on themselves, because they're viewed
as a central part of what is referred
to by some people as the resistance,
so enormous pressure and also enormous opportunity.
And when we talk about those three watersheds,
there are really three key moments, and one of them
started almost exactly a decade ago, 10 years ago in April,
when the Supreme Court ruled in a case called
Massachusetts versus EPA.
And at that point, George W. Bush was President,
and there had been petitions made
by environmental organizations to the Environmental Protection
Administration, asking the EPA to make rules.
It's called a rule-making process,
but to essentially, extend itself
to conduct a close examination of the risks of carbon dioxide
emissions for global warming and determine if there was a risk,
and if there was a risk, to promulgate rules.
And the EPA had declined to do that,
and Massachusetts and a number of other states
took the EPA to court and the Supreme Court
ruled in one of those kind of classic five to four decisions
that we're all getting so used to in this country
and that are maybe, sadly, now going
to be a thing of the past.
But in one of those decisions, ruled
that the EPA had to engage in rulemaking
and had to address global warming in that context.
And this wasn't some whim of the United States Supreme Court,
nor some whim of Massachusetts.
But Massachusetts said, look at the Clean Air Act,
and under the Clean Air Act, given the evidence that
is presented, the EPA has to engage in rulemaking,
and the Supreme Court agreed.
And that was really the first case
recognizing at the highest level of the Supreme
Court, the potential for state litigation
against the federal government of this nature.
The pendulum then shifted.
President Obama was elected and Frank
kept returning to Amherst.
Frank, and I'll return to Texas for a moment.
The Attorney General of Texas, then, Greg Abbott,
who is now the Governor of Texas,
used to describe, as Attorney General of that state,
as being I go to work, I sue the federal government,
and I go home.
And during that time, doing that,
he sued the federal government at least 48 different times.
And a lot of the state Attorney Generals,
from the people who were the most aggressive,
like Ken Cuccinelli, in Virginia,
to the ones who were more moderate-- the West Virginia
AG was very, very active around global warming issues.
They kept suing the federal government
under the Obama Administration.
There's nothing new about that.
But when I talk about the three watershed moments, the most
important moment, the one that is most
upsetting to those of us who view global warming
as an existential threat to the planet and to our children
was the litigation against the Clean Power
Plan brought by Texas.
The Clean Power Plan was the most significant administration
of the Obama administration when it came to global warming.
It was the plan that was designed
to address the Paris Accords.
The argument that the Republican Attorney Generals made
was that the plan exceeded statutory authority.
And that's a recurring theme throughout those litigations
brought by the Republican Attorney Generals.
They would say, look at the statute.
Look at what the administrative agency has done.
The administrative agency has gone too far
and was not authorized to do what it did.
And the case was in the DC Circuit Court of Appeals.
The Supreme Court decided to stay.
They went to the US Supreme Court, the Republican AGs,
and the Supreme Court stayed the implementation
of the Clean Power Plan until the DC Circuit could rule.
In the meantime, a new President was elected,
and last month, in April, the Supreme Court,
again, stayed litigation against the Clean Power Plan,
while the new Administration rewrites the plan.
So a very significant decision on a case
brought by Republican AGs.
The third threshold moment is the Trump Administration's
executive order--
styled as an executive order to prevent terrorist entry
into the United States.
There were cases brought by the Attorney
General of Washington state in the first instance, which
succeeded.
And then when the Trump Administration issued a revised
executive order, there was a litigation
brought by the attorney general of Hawaii, Doug Chin.
Both succeeded and the thing that
was most fascinating about both of these first litigations
was the extensive colloquy in the district courts
and also in the appellate courts about whether it
was legitimate for the courts to consider,
not just the statements made by President Trump,
but to also consider the statements that have
been made by candidate Trump.
And both the district courts, both
that considering the original travel ban
and that considering the revised travel ban,
said that it was appropriate to consider the statements made
by candidate Trump as part of their conclusion
that this was in essence a Muslim ban
and was therefore, unconstitutional
as an establishment of religion under the First Amendment.
I will point out to you that this week,
the federal appellate court considering
the litigation against the revised travel ban,
affirmed the decision of the trial court
saying that the revised order, the new and improved order,
quote "drips with religious intolerance, animus,
and discrimination."
Finally, before closing, just because we're
in this great hall of a great academic institution,
I will note for you the role that universities played
in these decisions, because the way that both the Washington
AG and the Hawaii AG teed this up as a matter that
was appropriate for the states to address
was by making concrete, detailed showings about how the travel
ban was going to adversely affect state
educational institutions by impinging on students who
needed to attend those schools and on faculty who are needed
to teach at those schools.
May I just file a little bit of an amendment
to some of what's been said, please?
So how many of you, in this room,
majored in political science at Amherst?
How many of you knew Earl Latham at Amherst?
So why didn't more of you major in political science,
and did Earl Latham have anything to do
with your decision?
So when I arrived, Earl Latham was
a legendary figure on the Amherst campus
and really a very significant figure,
both in American political science
and in the world of American politics.
And Earl never missed a moment in which
he could remind you of his status in the world
beyond Amherst.
He was a generous intellect and a very witty man.
And you didn't cross Earl Latham.
Earl famously described one of his colleagues
as having the personality of an empty gym locker.
You didn't cross Earl Latham.
Early in my career, I did cross Earl Latham,
and I crossed him, oddly enough, over the issue of federalism.
When I arrived in the early 1970s,
just really after the end of the high point of the Warren Court,
there was a lot of concern now that the Supreme Court
would not defend a set of values,
which we might call values of equality and inclusion.
And I was one of those people who
was worried about this moment in American politics.
And I remember having a conversation
with Earl Latham, in which I was bemoaning of this turn
to the right in the Supreme Court.
And this was right around the time
that Justice Brennan was speaking out in the 1970s
on behalf of states' rights.
Justice Brennan, who himself was worried
about this turn in the jurisprudence of the Supreme
Court, was urging state supreme courts to go their own way.
And in fact, I don't know if we'd
say this was nullification, Brennan urged supreme courts
to ignore Supreme Court decisions, which they found,
quote, unquote, unconvincing.
In any case, to end my Earl Latham story,
I was bemoaning this idea that progressives
would have to rely on state and state governments
and Latham said to me, do you remember Lochner?
I'll pause just to give those of you that went to law school
the chance to remember Lochner.
Lochner versus New York, I think,
may be the most famous case in constitutional law?
Early, early ones.
Let's have a vote.
I don't know.
In any case, as I was saying, Lochner, the most famous case
in constitutional law, was a case in which the United States
Supreme Court struck down progressive legislation
at the state level.
That's true.
And what Paul referenced, I think is absolutely right.
When we hear the words states' rights,
people who are of a certain generation
think about John C. Calhoun and George Wallace.
But there is a lot in between John C. Calhoun and George
Wallace, and what is in between John C. Calhoun
and George Wallace is a long tradition
of states going their own way, in a more
progressive direction.
Massachusetts abolishing slavery in 1783,
Wyoming giving women the right to vote
in 1869, and in the progressive period, in New York,
in Oregon and elsewhere, state legislators
pushing beyond what the federal government was doing
in the way of expanding, what I would call,
an equality and inclusion agenda.
And Earl Latham, in a very subtle way,
reminded me of that as I was bemoaning
the turn in the 1970s of some progressives
back to the states.
Excellent.
Paul, talk a little bit about how
state courts and state constitutions
are also advancing the states' rights.
Well, I guess what I would do is build on what Austin was just
talking about.
A lot of the progressive work that
was done in states in between John C. Calhoun and George
Wallace and has actually continued,
is done by state courts-- some of it by state legislatures,
but some of it by state courts.
And there's a particular way in which the state courts have
been very valuable at getting, ultimately,
a national resolution of controversial issues
and getting to a place where the country would never
have gotten otherwise.
And the example I would give is the progress
toward LGBT equality that has occurred in this country
rather remarkably over the past couple of generations.
And the way that was won was to use state courts and state
constitutions to go step by step to win victories
in each individual state.
There was an effort to win an important victory
early on in a case called Bowers versus Hardwick back in 1986.
They went straight to the Supreme Court
and said no state should be able to criminalize
gay sexual intimacy, and they lost rather spectacularly five
to four and set back the movement for equality
by at least 20 years having lost because they
hadn't laid the foundation yet for that kind of victory.
But then, for the next 17 years, the movement
went state by state and said, under your state constitution,
this can't be right that you can go into somebody's bedroom
and arrest them for what they choose
to do with another adult. And they won victories
in all sorts of rather remarkable conservative places
like Arkansas, Tennessee, Kentucky, Montana, Georgia.
And so 17 years later, there were only a relatively small
number of states that still purported to have the power
to put people in jail for that and the Supreme Court
overruled Bowers versus Hardwick, found
a national consensus that there ought
to be some protection for that kind of behavior in a case
called Lawrence versus Texas.
The same thing that happens in marriage equality.
If you had gone to the Supreme Court in 2000, 2002, 2003,
as some people wanted to do, and said,
you should have a right to same sex marriage equality,
you would have lost.
The country wasn't ready for it.
The Supreme Court wasn't ready for it.
And how did the country get ready for it?
Well, a lot of different things happened,
but probably the most important thing that happened
was somebody brought the right case in Massachusetts.
The Goodridge case in 2003 made Massachusetts
the first state in which same sex couples could
have full marriage equality.
And so by 2004, you had images on television of people getting
married and people learned very quickly that this didn't really
change anything for anybody except for the people who
were affected by it, who were going to be much more
secure and safe and happy, that it simply increased the sum
total of happiness in the society.
And why are we so upset about it?
Now, I wouldn't say that lesson was learned immediately.
There was a huge backlash in 2004,
lots of state constitutional amendments.
There had been a push back at Congress in something
called the Defense of Marriage Act,
back in the '90s, when this idea first came along.
There was a whole huge effort to try to stymie this innovation,
but it just kept going forward by going state to state.
There was a victory in California.
It was then overruled in Prop 8.
But then other states, Iowa in 2009, seven to nothing,
the Supreme Court of Iowa said you have a right
to marriage equality.
And so then, things just started to accelerate
and by 2015, the US Supreme Court said you do.
And by then, remarkably, there was a tiny little bit
of upset about it but people basically
knew this was gonna happen, and they've gotten used to it.
And it's now one of the most accepted things,
that it's hard to imagine the court going back on.
So that is an example of how states, if they didn't exist,
we wouldn't get there.
And one of the nice things about state courts ruling
on state constitutions, you can't go to the US Supreme
Court on it.
They can't be overruled.
And so you could go to the Massachusetts Supreme Judicial
Court and get Chief Justice Marshall
to write this amazing opinion in 2003 that
basically changed everything.
Professor Sarat, could you build on that,
things happening at the state level,
particularly in the area of criminal law?
So people, when they read the newspaper,
tend to pay a lot of attention to what
happens at the national level.
And one recent example of that is the announcement
of Attorney General Jeff Sessions
of a new policy with respect to drug
sentencing at the federal level, and that's
gotten a lot of attention, a reversal of what
seemed to be happening.
And if you read the op-eds, you'd
think this is really the beginning
of the end of criminal justice reform in the United States.
But if you look below the national level
and observe what is happening in state after state,
the effort in criminal justice reform is ongoing
and I think will not be in any way derailed
by this apparent reversal at the federal level.
Let me give you one other--
and so if you look at what's happening to incarceration
rates in the United States, incarceration rates
in the United States over the last three years
have come down across the nation.
And most of that is happening at the state
level, where most of the criminal justice action occurs.
And again, we don't pay attention, right?
You grab the Times and you see Jeff Sessions.
Another area in which this disjunction
between what may be happening at the federal level
and what is actually happening across the country
is in, of course, my favorite subject, namely the death
penalty in the United States.
So people worry that now with Trump and Sessions
in charge of the federal government,
the federal government will get back
in the business of doing much more in the way of prosecution
of death penalty cases.
And this is, of course, an irony for those of us
that live in Massachusetts, in particular,
that the federal government would bring death penalty
cases in states that do not have the death penalty,
asserting a federal interest under federal statutes.
But again, if you look at what's happening to the death
penalty across the United States at the state level,
state after state is either getting rid of the death
penalty or simply not using it.
State after state is either getting rid of the death
penalty or simply not using it, or even where it is being used,
it's being used much less.
And can we save this together as if we
were a reform congregation?
Even in Texas.
I think I said that alone.
So let's do it again.
Even in Texas.
OK, well that's enough of that.
Now I know what a hostile working environment means.
Again, standing up for my friend, Frank,
you know, Texas has been a leader in reform
on issues relating to innocence.
I've discussed this at various points with Barry Scheck,
and he says that Texas is really out there
in front of many states, in terms
of taking initiatives to avoid the conviction
of innocent people.
And I agree entirely with what Professor Sarat
said about how criminal justice reform proceeds.
There have been some very disturbing developments
from Washington.
There were, first of all, the Attorney General's comments
about sentencing, which runs counter to the way
that the country is still going at the local level.
And also, I think, perhaps most disturbing,
one of his early speeches in February,
mirroring the President's statements over time
as a candidate, reflects his view
that we are being too hard on the police,
as a society, specifically as it relates to violence committed
by police officers and that that unduly restrains the police.
And we've all seen how easy prosecutors have
gone on police in a number of police
killings of unarmed civilians.
And again, there are a wave of actions around the states,
and the action here is going to be primarily
at the local level.
And there's an increasing awareness
at the local and the state level of a need
for more rigor in these investigations
and even the appointment of special prosecutors.
Thank you.
If you remember nothing else from this presentation,
remember the nice things he said about Texas.
It was a short part of the conversation.
Yeah, well, OK.
Just to underscore the topicality of programming
brought to you by the extraordinary class of 1977,
Harlan, wasn't there's an article, actually
just in last Tuesday's New York Times,
that shows, again, just how dynamic this issue is
and how current this issue is?
Well, you know, the article was about California
and what California is doing in this context.
And you know, with my kids being here,
I'll get a little more entertaining,
or try to be a little more entertaining than I otherwise
might be.
Because of the fallout of the dispute between President Trump
and Arnold Schwarzenegger over The Apprentice,
Arnold Schwarzenegger, who as Governor, was actually
an extraordinary activist on issues around the environment
has become one of the most vocal critics
of the new Administration and has pointed out,
around global warming issues, that
to talk about building an economy around saving
coal is to talk about building a telecommunications
revolution around the pager.
And there's been this long, long tradition in California
of extraordinary activism around the environment
and that is coupled with something extraordinary, which
is that because of its extraordinary dynamism,
California is now the sixth largest economy in the world
and that gives it all kinds of power.
And one kind of power that it has is to the extent
that it can shape miles per hour requirements
as to gasoline in cars and thereby regulate emissions.
It is the force that will drive the nation.
So if it sets standards that are higher than federal standards,
it can get us more efficient cars, cleaner air,
and less global warming.
And the federal standards at the end of the Obama Administration
provided that by the end of 2025,
that cars will be required to go to 51 miles per gallon.
And the California standards require that by 2025,
that a standard of 54.5 miles per gallon will be required.
And yes, you guessed it, the Trump Administration
wants to roll back the federal standard.
So if that happens, we will have a California standard in place
much more exacting than that set by the federal government,
and because automakers from Detroit to Japan to South Korea
are going to want to be able to sell cars in California,
when they produce cars, that's going
to be the standard that they're going to have to meet.
And there was an EPA waiver issued
by the now saintly President Nixon providing that California
could set fuel economy standards exceeding
the federal requirements.
And it's going to be up to Scott Pruitt and the Trump
Administration to decide whether to repeal that waiver.
And if they do, there's gonna be a lot
of very interesting litigation about whether California can
continue to drive the nation or whether this action is going
to be preempted by federal law.
Fortunately, consistent with what Professor Sarat said,
there is a long history of a state role in this field
and the state role in protecting the environment,
going back to Justice Holmes, some truly beautiful
and ringing statements in his opinions about the state role
in this area.
I will then talk about something else
that California is doing that is really fascinating.
That California is working with other nations,
with Canada and with Mexico to develop voluntary treaties
around carbon dioxide emissions and plans
to be able to both cap carbon dioxide
emissions within those jurisdictions
and then trade them among jurisdictions that include
themselves in these plans.
And they have also been meeting with the Chinese,
the California state officials, around setting up cap and trade
policies.
Where that goes or how cap and trade works,
that's well beyond me, but it's, again,
another fascinating area.
And whether that's a bridge too far remains to be seen,
but it's certainly very interesting.
Well, that, I think, sort of invites the obvious question.
Austin and Paul, we've talked about where
these battlegrounds have been over the last several years.
Looking at your crystal ball, what are going to be the future
battlegrounds where there's conflict
between states' rights and the federal government?
Well, you know, there's obviously
stuff going on right now that will just continue
to intensify about immigration.
And sanctuary cities and that whole area is one, I think,
that it's just inevitable that there's going to be conflict.
And it's one of the areas where the states are really actually
kind of defying, not quite nullifying,
but defying federal law in a way.
And so, certainly, I think, you can predict
that to be at least one area.
Another is drug policy-- you know, in the Obama
Administration, states were allowed to legalize marijuana,
even though it's still illegal under federal law.
There was no enforcement in those states
with the federal law.
I don't know that that's likely to continue in the Trump
Administration.
You could have a very intense conflict
over that basic public policy question.
You have other thoughts?
So I want to turn Frank's question
from a predictive question to a normative question.
And again, I hope you'll join me in this.
So if I say states' rights, are you in favor of states' rights?
How many of you would say, yes, I'm in favor of states' rights?
Changed a few minds, right?
So I want to tell you my position on states' rights,
lest you not have that information.
So I'm in favor of states' rights
in New York, Massachusetts, California, and maybe Texas
but--
Now, why do I say that?
I say that because now I'm in extreme states' rights
relativist.
There is nothing normatively valuable about states' rights
in and of themselves.
I'm in favor of states' rights and the assertion of state
power when those assertions of power and rights
advance an agenda of inclusion and equality.
I'm opposed to states' rights when
the assertion of states' rights and state power
are used to restrict equality and inclusion.
Maura Healey, yes.
Kim Davis, no.
I thought that would get a better reaction.
Let me try another--
Hold on.
Hold on.
You're at Amherst.
I'm the professor.
Just remember.
And I think it's really important for people
to think this through.
Again, there's another great political scientist
named E.E. Schattschneider.
And Schattschneider said about the United States--
the federal government and the state government--
for people with political agendas,
substantive political agendas, federalism
provides the opportunity for forum shopping.
So when you think about states' rights,
I think what's important to think
about is what arenas of conflict are available to advance
an equality and inclusion agenda, rather than states'
rights, good or bad?
Harlan?
Yeah, let me try a slightly different cut at the answer
to that question, which is that let's look
at the underlying cases that Maura Healey in Massachusetts
and Eric Schneiderman in New York
and Bob Ferguson in Washington state are bringing.
And I'd suggest that there is a principled way
to look at this, which is that what they're doing typically--
what was done in Massachusetts versus EPA
was a case by the states to vindicate federal law,
the Clean Air Act.
The case was brought by Massachusetts and its Attorney
General and by the governors of various states
as a way to vindicate federal law
and protect the environment.
The Muslim ban case was brought as a case brought
under the federal Constitution.
It was protecting federal constitutional rights.
And I would prefer to view this--
certainly, I think that Attorney Generals
have a right to be policy-driven,
and Austin, that's where I agree entirely with you
about the choice of cases.
They're elected by the voters.
They have a right to be policy-driven in the cases
that they choose to bring or not to bring,
but I think that looking at this framework of this anomaly
of states as the new vindicators of federal law
and federal rights, and state rights, too,
where there are state rights that are established
that require protection.
I think that that is a view of the role of the states
that is fully consistent with the rule of law
and that the rule of law needs to be
a central part of any agenda, particularly
in this day and age.
I would also like to just address Frank's question,
briefly, about--
the crystal ball question.
What's next?
At this point, it's not a secret, the same way
that the Republican AGs had a network going for those eight
years where they worked together to think
about the cases they're going to bring,
the democratic AGs are talking with each other.
There's more coordination than ever before.
There's more of a focus on what to do.
As always, the flip side of determining what's next
is the question of what's next from this Administration?
Because what they're going to do by nature because they're
reactive and they sue, they're gonna
look at what the Administration does and react.
So the limits of what they can do
lie in the imagination of this new Administration
in Washington that will drive it.
But with that said, there's one area
that I think that everybody has to be critically attuned to
and that's global warming.
We know they're gonna act in this area.
We know that it's critically important,
and as always, the focus has to be
how do we vindicate the rule of law?
How do we look to state law?
How do we look to federal law?
How do we look to federal constitutional rights?
Just one quick comment--
in the area of predicting, I think
one of the things we're going to see happen more,
given the likelihood that the Supreme Court is gonna continue
to be more and more conservative, the question will
be, how far will the Supreme Court go
to try to push back against progressive state initiatives
under state law?
We have, for example, now cases in which
states are being sued for requiring people
not to discriminate based on sexual orientation
under theories that that violates
peoples' freedom of religion or freedom of speech.
And there are many people in the conservative legal
establishment, who would very much like
to see a return to Lochner, to see the Supreme Court starting
to cut back on business regulation,
protecting business from economic regulation of the kind
that, at least for the last 70 years, we've assumed
is completely within the power of the states.
So I think this tension is going to, in some ways,
continue as institutions of the federal government
become anti-federalism and start to try to nationalize by using
the federal constitution to push a conservative agenda
and to shut down things that the states are trying to do
under their own state's law.
Which is, of course, basically, what
we have here is Harlan talking about the Attorneys General
enforcing federal law very aggressively,
but the other issue is what states
are doing under their own laws and whether or not
the Supreme Court will continue to allow them to do that.
Great.
I've been told that there is a group coming
in here right when we finish.
So we need to end on time, and I wanted
to leave a little bit of time for your questions.
So if you have any questions for this fabulous panel,
please ask them.
And I ask that you distill them, condense them, and not
statements that just lilt with your voice
up at the end but real questions.
So yes, right there.
OK, as someone who has been working on criminal justice
policy reform in Texas for 30-plus years,
I thought I was gonna at least some of discussion.
So I'm a little disappointed in policy here.
But also I want to get back just a little bit
about what you were saying about criminal justice policy reform.
First, I do think you're absolutely right that reforms
are happening at the state level, no question about that,
but I don't think that it's the same situation
as you may be suggesting.
What situation?
The same situation, in terms of the direction of reform.
Three reasons for that.
One is that I think that the reforms are fragile
and they're not nearly as impressive as they
may be being presented as.
There are reforms, but they're not revolutionizing anything.
Secondly, the messaging that is happening at the federal level
has influenced what is happening at the state level.
Over the last decade or so, there
hasn't been a voice pushing for tougher policies,
and as that voice gets louder, it's
gonna be harder for the reform, progressive minded voices
to keep pushing on the messaging.
And third, the federal government
can influence what's happening at the state level
as it did in the '90s with grants and through rules,
let's say, that they're going to withdraw funding to the states
if the states don't pass potentially tougher gun laws.
So anyway, I just wanted to qualify what you're saying,
to say that it is still a very worrisome situation
at the state level.
I know, I'm potentially anxious so that doesn't surprise me.
And as people read the tea leaves,
they read the tea leaves [INAUDIBLE].
So unlike in the earlier period, you now
have a very assertive left-right coalition
at both the national level and in many states
on behalf of prison reform.
The second thing, again, you know much better
than I, that is driving a lot of this
is the issue of costs and state budgets.
And those are, you know, as March used to say,
they're based in superstructure, the issues of cost versus base.
So it may be right that the messaging at the state level,
that maybe a little bit of grant making,
will destabilize this sort of fragile movement.
I'm a little less worried than you seem to be about it.
Great question.
Yes, you sir.
Please predict the outcome of the travel ban litigation.
The question was, what's gonna happen to the travel
ban in the Supreme Court?
I think it's a very tough case for the plaintiffs, actually.
I think to invalidate something that otherwise would be legal
based on what a candidate said in a campaign
about motive, when it's only a small subset of countries
that are Muslim in this world.
Given the Supreme Court we have, I
would think that they have a very good chance
of getting it reversed.
I'm not saying I think that's the right answer,
but I think that's what's likely.
Anyone else?
Well, you know, again, Paul is literally
one of the premier Supreme Court litigators in the country.
So don't disagree with me, right?
So I'll just say that I try, particularly in these times,
to live my life as an optimist.
This is a shift of focus a little bit on to health care.
So one of the great engines that's coming in reform
is to push stuff to the states, notably Medicaid
because they know darn well that Medicaid
is gonna be adjudicated harder at a state level
than on a federal level to use state level budgets and state
level ideas to talk about Medicaid.
Number one, it's gonna be very disparate among states,
and number two, it's gonna be very
restrictive to a lot of states and they're
very happy about that.
So for a group of distinguished lawyers, how do fix that?
[INAUDIBLE]?
How do we fix the movement to block grant Medicaid
and just let the states--
and then cut--
How do we push back?
That, I think, it's not a lawyer's problem.
That's a political problem.
You can't make a constitutional argument out of that.
Yeah, and look, Bill, I mean, there's law
and then there are movements, right?
You know, this may be an occasion
for the medical profession to step up,
as it is, for doctors to step up, for hospitals to step up.
So when Paul says it's not so much a legal issue,
the issue of what people who are impacted can do on the ground
will be as much of the answer to that as anything
that we, as two lawyers and a distinguished
political scientist have to say.
This is a break point issue.
And you know, this is a break point issue, I think,
for the Trump coalition.
And I think, again, it's sort of like what
I was saying to Michelle about criminal justice reform.
The alliances of a hospitals and the AMA,
these are important alliances pushing back.
And so I, myself, again, maybe being a little bit more
optimistic, think that there are some substantial forces that
are gonna be arrayed against this move.
So Dr. Hines, looks like you need to get after that,
and if you'd report back in five years
and tell us how that worked out.
Yes, Richard?
Do you feel that the legal Doctrine of Preemption
is anything other than a kind of result-oriented approach,
or does it really guide courts in this area?
The question is whether the Doctrine of Preemption
is result-oriented in its application?
I think, you know--
Well, say what the Doctrine of Preemption is, for those of us
that--
It is the situation where federal laws are
inconsistent with state laws, the state law has to give way.
And there's many, many Supreme Court cases every year
about whether a particular state law can still
survive federal preemption under some-- say,
the Food and Drug Act preempts all sorts of state regulation
of food and drug stuff.
And this will be a continued area of conflict
as states start to do things at the state level that
can be viewed as inconsistent with federal statutes
and policies.
Whether the Supreme Court is more
result-oriented in those cases than any other,
I don't particularly see, actually.
I think that there are times when
they try to follow the law very clearly other times
you might criticize him as being more policy focus
but doesn't seem to me a particularly bad candidate
for sort of suggesting the courts has somehow gone
worse there than other places.
And it's a very complicated doctrine.
It's based on the-- we're talking about states' rights--
this fundamental principle of the Supremacy Clause
and the federal law is supreme to state law.
And then there are the issues as to whether an area has
been specifically preempted by federal law
or whether the field, the general area,
has been preempted.
So it's complex, and I think your question's a good one.
Let me just say, this is--
I'd like to take the particular question
and broaden it a little bit because I
think it's a very hard one and not about preemption.
I want to pick up on what Harlan said about the rule of law.
So if you look at the Academy writ
large, if you look at what political scientists
and legal scholars across the country
have been writing about the rule of law
since the era of legal realism, which is to say over
the course of more than 100 years,
I would say that the predominant view,
not just the predominant view but almost a unanimous view
is that this idea that the rule of law
can be separated from politics is fictive.
Now, what that means is that there
are a lot of people in the Academy, who are now engaged
in substantial revisionism.
They want to rehabilitate the idea.
So when Trump says about a decision,
it's merely political, people know what to say,
as Harlan did, remember the rule of law.
And so this issue, right, it is a kind
of as the world turns, where a lot of progressive scholars
say, oh, law and politics, we can predict
to a very high order of certainty
how every United States Supreme Court will vote in contested
cases where those contested cases have any value
dimension to them.
We know where they're gonna end up.
So to say that, well, there's no politics to law,
is to engage in something which is kind of empirically
very complicated.
But as Harlan pointed out, very important now
to talk about what the values of the rule of law are
and to stand up for those values and to differentiate
politics from ideology or politics small from politics
writ large.
So I don't think it's just a matter
of the issue of preemption, as important as that is.
I think it's what you said, it's something
that we're all gonna have to now speak out about.
And when your colleague at Georgetown
wrote this editorial in the Washington Post
about Judge Gorsuch, again, a progressive important litigator
in defense of his nomination on the grounds of his commitment
to the co-judicial role, that was
an important moment in this turn a little bit away from,
oh, it was politics, anyway.
That's a great way to end our panel.
Let's give a round of applause to our participants.
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