Death panels will create battalions of disappointed supplicants with nothing left to lose:  Issue scooter-mounted recoilless rifles and point in the right direction.

If the president is willing to be a one-termer to pass health care takeover, is he a suicide o-bomber?

You will have to read to the end to get to why this is pertinent to the folly of federal tort reform.

The bookend cases of Swift v. Tyson (1842) and Erie v. Tompkins (1938) say all there is to say about interaction between state law and federal law.

The opinion in Swift was written by Supreme Court Justice Joseph Story, a Harvard educated elitist.  Swift was a commercial case and was in federal court because of the diversity of citizenship – the plaintiff and the defendant were from different states.  You can go read the facts yourself but I guarantee they are not interesting.

The big picture is this.  Under the Judiciary Act of 1789, the common law to be applied was the common law of the state.  The federal courts were bound by state law.  Story did not like the federal court’s outcome under state law.  He decided, more or less, that the Judiciary Act of 1789, did not require the application of state law for issues of “general” law.

Here is a long quote seething with elitism:

If there is any question of law, not local, but widely general in its nature and effects, it is the present question. It is one in which foreigners, the citizens of different states, in their contests with each other, nay, every nation of the civilized commercial world, are deeply interested. By all without the United States, this court is looked to as the judiciary of the whole nation, known as the United States, whose commerce and transactions are as widely diffused as is the use of bills of exchange. The obvious and admitted wisdom of the 34th section of the judiciary act, in reference to our excellent, but delicate and complex system of government, if the section does not receive the construction contended for, and which it is believed, the framers of that act designed, will lose its nature and become folly; and the section will, as it seems, be productive of mischiefs, in the experience and remembrance of which its benefits will be lost sight of, if the principle urged on the part of the defendant shall prevail. How can this court preserve its control over the reason and affections of the people of the United States; that control in which its usefulness consists, and which its own untrammelled learning and judgment would enable it naturally to maintain; if its records show that it has decided (as it may be compelled to decide, if the construction of the section referred to, advocated on the part of the defendant, be established) the same identical question, arising on a bill of exchange, first one way, and then the other, with vacillating inconsistency?

Did you get that? Federal judges by virtue of their being federal judges have the “untrammelled learning and judgment” apparently lacking in the state court judges.  Of course, Justice Story assured us that state law was to be applied to local matters.

In the years between 1842 (Swift) and 1938 (Erie), what was general law expanded.  What was “general” was subject to the taste of the individual federal judge.  If he saw a rule or result dictated by state law he didn’t like, he found it to be a principle of general law.  Since there was no definition of general law, there was no way to appeal a finding that the issue was one of general law.  On that count, consider Supreme Court Justice Field’s confessions:

I am aware that what has been termed the general law of the country-which is often little less than what the judge advancing the doctrine thinks at the time should be the general law on a particular subject-has been often advanced in judicial opinions of this court to control a conflicting law of a state. I admit that learned judges have fallen into the habit of repeating this doctrine as a convenient mode of brushing aside the law of a state in conflict with their views. And I confess that, moved and governed by the authority of the great names of those judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now erroneously, repeated the same doctrine….

Over the years, things spun out of control. In 1938, the Supreme Court took up the case of Erie RR v. Tompkins.  The facts in this case are interesting. Tompkins, a citizen of Pennsylvania, was walking along railroad tracks in Pennsylvania owned and operated By Erie Railroad.  A piece of debris fell of the train and struck Tompkins.  Under Pennsylvania law, a person walking along the track was a trespasser and not entitled to recovery.

The federal rule was the opposite – a person walking along the track was not a trespasser and was entitled to recovery.  Tompkins’ lawyer understood that the case would be lost in a state court.  Since Erie was a New York corporation, Tompkins sued in federal court in New York and won.

Erie appealed insisting the Judiciary Act of 1789 was unconstitutional because it denied was discriminatory. But the Supreme Court positively affirmed the constitutionality of the Judiciary Act.

What was unconstitutional was the actions of the federal judiciary itself.  First, the fact that there was no definition of “general” allowed federal judges to behave arbitrarily: ”the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties”

Second, it made equal protection of the law impossible:
”Diversity of citizenship jurisdiction was conferred in order to prevent apprehended discrimination in state courts against those not citizens of the state. Swift v. Tyson introduced grave discrimination by noncitizens against citizens. It made rights enjoyed under the unwritten ‘general law’ vary according to whether enforcement was sought in the state or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the noncitizen. Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the state”

The Court was saying that a law intended to protect non-citizens from discrimination in favor of citizens was actually having the opposite effect.  Swift gave the non-citizens the power to select what law applied to the facts after the fact!

When you mention Erie to most educated in American law schools, their immediate reaction will be: there is no federal common law and state substantive law and federal procedural law in federal courts.  As you can see with your own eyes, that is wrong.  What Erie says is that there can only be one law applicable to a fact situation. If there were two or more, one of the parties would have the power to select after the fact.

Try this thought experiment.  Even I might concede that Congress has the power under the interstate commerce clause to regulate the goings on of railroad track that cross state boundaries.  Suppose Congress passed a law that said if the suit is brought in federal court, federal law applies, otherwise, if the suit is brought in state court, state law applies.  This statute would not violate Erie’s prohibition on federal common law.  But doesn’t it still violate equal protection? Is not that the fact situation in Erie?

In my opinion, Erie is one of the most important cases in American legal history.  It is applied every day in bankruptcy cases, tax cases, and property cases. Outside of territories and conclaves there is no federal property law.

Erie is pertinent to federal tort reform.  The federal congress cannot pass a law subjecting medical malpractice cases to federal law if the case is brought in federal court and allowing state law to be applied to cases brought in state court.

Moreover, I don’t believe a federal statute can be passed without it being a federal question which raises federal jurisdiction even in non-diversity cases.  I don’t believe the federal congress can pass a law which says you are subject to this federal law but you can’t go to federal court.

I wonder how federal judges feel about using their “untrammelled learning and judgment” on dogbite cases? It’s coming.

P.S. A good discussion of Swift and Erie: Gilmore, Grant. The Ages of American Law. Yale University Press, 1977. ISBN 0-300-01951-3

In a thread about tort reform, I started off a comment to Mr Devine with what I thought was an innocuous preamble:  ”I am not being a wiseguy but please tell me where I misapprehend the implications of federal tort reform.”  I was trying to show respect for Mr Devine’s experience and, knowing I’ve written about this subject several times, wanted to deflect from the appearance of my being a one-trick pony.

But I guess I am a one-trick pony. My one trick is this: curtail expansion of central power through the interstate commerce clause.  Nobody challenges federal legislation anymore because making a frontal assault on federal power interstate through the interstate commerce clause is futile.  All central power comes through the commerce clause.

I challenge anyone to give me any action or subject. I can connect it with interstate commerce in the maximum of two hops.

In any case, it disturbs me to see people on the conservative side of the aisle are clamoring for federal tort reform.  If you are for states’ rights and respect for the Tenth Amendment, how can you possible want federal tort reform?  Do you just want states’ rights for the stuff you favor and not for the stuff you don’t like? Begging for federal tort reform is suicidal.  You are begging the federal government to preempt a substantial portion of hundreds of years of state law.

If a federal tort reform act is passed, it can only be done so based on the interstate commerce clause.  Under Article VI, all federal laws passed pursuant to the constitution preempt “conflicting” state laws and state constitutions.

Here are the implications of a constitutional federal tort reform act.  If the federal act preempts conflicting state laws and constitutions, which it does by Article VI, the federal government has always had that power and the states have never had it.  The fact that the states have been regulating tort law up until the time of the federal tort reform act was due to the forbearance of the federal legislature.  Again, if the federal Congress has the constitutional authority to pass a federal tort reform act today, they had the authority to do it in 1789.

According to the theory underlying the Tenth Amendment, the people had all the power. Some of it they delegated to the federal government through the federal constitution, some of it they delegated to the state government through the state constitution, and some of it they kept to themselves. Since there was no constitutional amendment granting the federal legislature the authority to regulate tort law, it must exist in one of the existing grants of power, namely, the commerce clause.

In trying to explain a newly found or exercised federal power, federal courts rely on the Clear Statement Doctrine: ”The Supreme Court has long required that if Congress intends to alter [the usual constitutional balance between the States and the Federal Government,] it must make an unmistakably clear statement of its intention to do so in the language of the statute.”  Notable about the clear statement doctrine is the presumption or assumption that the federal congress has the authority. It is only their intention to preempt state law is in question.  In other words, the fact that tort cases have always been judged by state law precedent is not a rebuttal to the federal congress clearly and unequivocally expressing its intention to “alter the constitutional balance.”  The main point — that the federal congress has the power under the interstate commerce clause — has already been conceded. Again, the only condition for preemption of state laws and constitutions under Article VI, is that the federal law was made pursuant to the constitution. Game over.

Some argue that we only want to regulate medical malpractice cases. A medical malpractice is negligence case.  The only difference between a medical malpractice case is the standard applied to the defendant. In the case of a car accident the standard to be applied is whether the defendant acted as a reasonable driver or person; in the case of medical malpractice, a reasonable doctor; in the case of architectural malpractice, a reasonable architect, and so on.  So when you concede the federal government has power to regulate malpractice cases, you are saying it has power to regulate car accident and dog bite cases. You have conceded that the federal government has the power under the commerce clause to preempt all state tort law and state constitutions. Game over.

Others argue that we should put caps on damages.  This is the most ghoulish suggestion I’ve ever heard.  Assume you have a case where the doctor has accidentally amputated both of a person’s perfectly good legs.  Let’s say there is universal and unanimous agreement that the damages are 1,000,000.  Now let’s say there is damage cap of 300,000. Someone is ahead by 700,000.  There is only the doctor, the doctor’s insurance carrier, and the general public.  If the general public is ultimately benefited by the reduction of medical malpractice premiums and a consequent reduction of medical costs, this one person has borne the expense of your benefit.  How’s that for a transfer of wealth?

The ultimate folly of federal tort reform is that you are conceding the one and only point – the federal government has power to preempt state tort law.  While this federal tort reform may be beneficial today, what happens when they lobby and adopt a non-beneficial tort reform in the future? You are out of arguments against it. Suckers.

Finally, I too am an attorney, basically a real estate attorney.  That I am an attorney is a distinct disadvantage when discussing tort reform.  There are always hints and implications that one is opposed to tort reform because one is getting rich off of it. I wish I could justify that.

Of the town hall protesters, John Dingell said: “Well, the last time I had to confront something like this was when I voted for the civil rights bill and my opponent voted against it. At that time, we had a lot of Ku Klux Klan folks and white supremacists and folks in white sheets and other things running around causing trouble.”

That he had an opponent on a bill didn’t make any sense.  According to Dingell’s house web page, John Dingell’s opponent was a Democrat:

“In 1966, redistricting merged his district with that of Rep. John Lesinski Jr. Both men were Democrats, but they split on the 1964 Civil Rights Act — Dingell voted for it, Lesinski against it….”

Further Health Care vocabulary adjustments:

Terror Groups: Left-wing Advance Care Planning Squads
Murder: Unauthorized Advance Care Planning
Defense To Murder: Advance Care Planning
Fascist signs: Advance Care Planning To America
Abortion: Early Advance Care Planning
Air Cavalry Motto: “Advance Care Planning From Above”
Roberta Flack Song: Advance Care Planning Me Softly

An issue generally ignored by the MSM and the US Congress is anthropogenic plate shifting.

All agree that the ideal state of the Earth is found in the Pangaea land mass as it existed about 250 million years ago.  What has happened since that idyllic time? Man made his appearance.

Since the appearance of man, the plate shifting has only accelerated.  What has really stepped on the accelerator is the appearance of United States of America.

It is the census of a majority of geologists that the industrialization and productivity of America has dramatically sped up the separation of the continents.  Prior to the appearance of America, the nation, the North American plate was moving at the maximum rate of 40 millimeters a year.  A majority of geologists estimate that this has increased to 41 or 42 millimeters a year because of American insatiability!

In a Star-Trekesque analogy, the consensus geologists explained that the presence of America is like washing machine with all the towels on one side during the spin cycle.  As Americans reproduce and acquire more stuff made from resources in one part of the world, it unequally distributes weight to America, especially to the West Coast.

A group of concerned geologists, Continental Geologists Against Plate Shifting, have proposed a legislative solutions.  This legislation would balance the North American continents in a two ways.  First, it would provide tax incentives for the obese on the West coast to move to the center of the country.  Second, the wealthy on the West coast would have to balance each new acquisition with an acquisition in the center of the country.  For example, if a Hollywood star buys a yacht, he would have to buy one (or its equivalent weight in lead) for someone in Kansas.  Their goal is to evenly distribute the towels in the spin cycle.

Radical groups like NOGAPS have proposed different solutions. They want everyone in North America to move themselves and their stuff to the East coast.  They want the Europeans to move to Portugal; the Africans to Morocco; South Americans to Easter Brazil.  They favor the literal reformation of Panagaea and think that this will help. Some ultra-radical splinter groups have even taken matters into their own hands, smuggling large rocks from CA to NC.

More moderate geologists opt for sensible solutions like fat and trade.  The coastal obese and acquisitive can purchase waivers for excessive weight and the money would be used to plant lead weights in the center of the country.

Whatever solution one opts for, doing nothing is not an option.  But there is a fear that unless an elegant and persuasive spokesman like Al Gore appears, there will always be plate acceleration deniers.

What does plate acceleration mean for America?  Every year we grow farther and farther away from our other continental brothers and sisters. Some say in billion years, we will be as far away from them as is possible. That would be bad, the geologists consensused.

To those who habitually cite the 10th Amendment to complain about federal forays into state matters, make up your minds.  You whine about federal intrusions but beg for the more when you ask for federal tort (malpractice) reform.

Unless you live in a federal enclave or territory, tort law is state law and nothing but state law.  And even if you are in federal court because of diversity of citizenship, the federal court uses state tort law.  And if you are in federal court because of a federal question and you join state tort claims, the federal court uses state tort law for the state tort claims.  Federal courts are bound to follow state court decisions.

Demanding federal tort reform is demanding the federal government take over state tort (malpractice) law.  It is demanding that the federal government preempt hundreds of years of state case law.  And it is demanding the federal government take over one-third of the state government.

Given the interpretation of the commerce clause, I do not doubt that federal tort (malpractice) reform would be upheld as a proper exercise of federal power.  Then you can go back to complaining about the federal government ignoring the 10th Amendment.

Since no one else has undertaken comment on Sarah Palin’s resignation, I guess it’s up to me.

As much as I could, I tried to put myself in the shoes of the First Dude.  Like a zillion other guys, I have experience raising teenage girls.  But, like a zillion other guys, I don’t have 5 kids and don’t have a special needs kid.

The life of a teenage girl in America is tough enough without millions of prying eyes: Am I ugly? Why doesn’t he like me? Am I fat? And so on.

So, dads, how would you feel if a bitter so-called comedian told a couple of million people that your 14-year old daughter was having sexual intercourse with an amoral baseball player in the presence of tens of thousands baseball fans?  And, dads, would your anger be assuaged if this so-called comedian apologized by saying that he didn’t mean your 14-year old daughter; he meant your 18-year old daughter? Husbands, how would you feel when this same funny man says your wife looks like a slut?

This was one of the latest but surely not the last unwarranted insults to your loved ones.

Dads and husbands, you know all the lies and insults. I am not going to list them all.  But I do have to express my shock about the latest taboo crossed: it is now okay to heap scorn and ridicule on a handicapped infant.

But imagine you are the dad and husband subjected to this treatment daily.  You and your wife couldn’t fight back because you were restricted by the duties of the office of governor. You and your wife couldn’t fight back because of the restrictions of the role of a Vice President in a national campaign and back-stabbing employees of a vain, foolish and dishonorable old man.
But the lies and insults were not enough.  You had people trying to drive you and your family into the poor house at no cost to them.  How could a husband, a father, a wife, and a mother let that happen?  How long could a husband, father, mother, and wife sit by and watch this happen?

From what I’ve seen, Mr and Mrs Palin struck the perfect balance. He didn’t appear to be uncomfortable in his role: he worked at a cool job, did cool guy stuff and helped with the house. (I once had an extended period of working at home taking care of the kids. If you’ve never done that before, believe me a crappy job outside the house is much easier than taking care of the house and kids.)

I know it goes back to the schoolyard but one thing these attackers have in common is that they are bullies.  They are the kids that start their mouths up only after they are out of retribution range.  Would David Letterman have told those “jokes” if Todd Palin was sitting on the guest couch?  I doubt it because when you call a man’s daughter a whore and his wife a slut, you can expect what’s coming next. And would deserve every knuckle.

I don’t know about the ultimate wisdom of threats of slander lawsuits but I do know one thing. It lets these bullies know that the free ride is over.  Now, they’re the ones that are be paying the $500,000 in legal fees to defend themselves in a suit in Alaska.  I hope the Alaska lawyers rape them on the fees.  Plus, if they’re from New York, they will have first-hand experience with commuting from the lower 48.

Some may say she ruined her political career by quitting. If she did, whose business is that anyway?  As your dad always told you, bullies are cowards.  Now that the Palins are unrestricted, we’ll see who the real cowards are.

In “Federal building codes Part III,” an allusion was made to the problem of a federal and state armed robbery statute applicable to one set of facts.

The federal Hobbs Act is an armed robbery statute applicable to armed robberies affecting interstate commerce.  It is simply a fact that all armed robberies affect interstate commerce. And it is simply a fact that all states have armed robbery statutes or rules.

So, if an armed robbery occurs, what determines if someone is prosecuted under state law or federal law?

This is a reasonable and significant question because there could be great deal of difference in the application of the two laws.  For example, evidence admissible in federal court may be inadmissible in state court under the state court’s interpretation of the state constitution. There may also be differences in sentencing, etc.

This is not about going soft on armed robbers; it’s about equal protection:  if two people commit the same offense, why are they treated differently?

The only thing we know about how the decision is made to federally prosecute an armed robber is what we see on Law And Order.  Jack goes down to the US Attorney’s Office and begs the US Attorney to let New York prosecute the case.  The US Attorney has the final decision and there is no appeal.

But the defendant was not invited to this meeting where his life and liberty are being decided.  And procedural due process requires that any person whose life, liberty, and property are being affected by government actions be given certain rights: notice, opportunity to be heard, representation by counsel, record of the proceedings, etc.

When the US Attorney decides to prosecute, what is he or she really deciding?  He or she is deciding to preempt or nullify state law in this particular case.  That is, according to the Supremacy Clause, if the federal armed robbery law is a constitutional exercise of the commerce clause, conflicting state laws are preempted.  How can any law be more conflicting than one which is applicable to the very same set of facts?  If the state armed robbery laws are preempted, how is it that the states are still prosecuting people for committing armed robberies affecting interstate commerce under state law? Under what law are the states prosecuting? The preempted statute?

The clear statement doctrine cited in “Federal building codes Part III” says that congress may alter (preempt) the historical relationship between the states and the central government by clearly and unambiguously stating that as its purpose.  With respect to the federal armed robbery statute, the Hobbs Act, congress has not expressed any intent with respect to the state armed robbery law.

The only way the current state of affairs can be interpreted is that congress has delegated to an executive officer, the US Attorney, the power to express its intent on a case-by-case basis.  It is obvious that the expression of legislative intent is a purely legislative function.

Because preempting state armed robbery laws changes the historical relationship between the states and central government, it is not the type that can be delegated to an executive officer.  But even if it could be delegated to an executive officer, it must be delegated with standards for its exercise.  But even if it was delegated with standards, it must be exercised in a forum and manner according the person subject to it due process.

Suppose there are defendants A and B. Both have robbed the same store for the same amount of money.  Suppose the US Attorney chooses to prosecute B but leaves A to be prosecuted by the state.  Further suppose B is a member of a minority group.  At what point and where would B challenge the federal prosecution of being discriminatory?

When charged with discrimination, the US Attorney can simply point out that the robbery affected interstate commerce and the US Attorney can prosecute under the Hobbs Act.  But that’s true of every armed robbery and the US Attorney does not prosecute every armed robbery.  If all armed robberies are prosecutable under the Hobbs Act, how is the selection made?

A charge of discrimination would highlight the fact that there is no record of the reasons for the US Attorney’s decision.  Some might say that such blatant discrimination could not possibly happen. But isn’t that prejudicial as well?  That is, if there is no evidence one way or the other, how can one conclude there is no discrimination?  In short, if I had a client subjected to selective federal prosecution, you can believe I would be making these allegations because there is no evidence that they cannot be true. What are we supposed to rely on, the fact that US Attorney so-and-so is a good person and wouldn’t do that?

(For those contending that it’s prosecutorial discretion, that’s another subject for another day.)

The problem as I see it involves the rights of state citizenship.  Prior to the 14th Amendment, there was no national definition of state or US citizenship.  Citizenship was defined by legislatures.  If only citizens had constitutional rights and only legislatures could say who was a citizen, legislatures could say who did and did not have rights.  In other words, even slave states could honestly claim that there was no discrimination of their citizens.

The purpose of the 14th Amendment was to put an end to the citizenship shell game:

Senator Howard, who sponsored the Amendment in the Senate, thus explained the purpose of the clause:

“It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. . . . We desired to put this question of citizenship and the rights of citizens . . . under the civil rights bill beyond the legislative power . . . .” Cong. Globe, 39th Cong., 1st Sess., 2890, 2896 (1866).

AFROYIM v. RUSK, 387 U.S. 253 (1967)

Another important provision was the requirement that states treat everyone within their jurisdiction as a state citizen. It was important because states might be tempted to discriminate against people within their jurisdiction because he or she was not a citizen of that state.

So after the 14th Amendment, every person had rights under the federal constitution as a US citizen and rights under the state constitution in the state where they were whether or not they were a citizen.

Consider prosecution under the Hobbs Act in light of the rights of state citizenship.  Suppose under the state supreme court’s interpretation of the state constitution certain evidence of the armed robbery is inadmissible.  In a state prosecution for armed robbery, that defendant would have the right not to have such evidence admitted against him.  If it were, that defendant would be denied equal protection of the law under the 14th Amendment – the decision to admit it would necessarily be arbitrary.

However, if that defendant is one of the select few the US Attorney chooses to prosecute under federal law, he apparently does not have the right not to have that evidence admitted against him because no such right is recognized under federal law.  What happened to it?  If any US Attorney is ever called on to explain what happened to that right under the state constitution accorded to almost all armed robbery defendants, the only possible answer is that the federal law preempt state law.

Is this not a repeat of what was happening before the 14th Amendment only worse?  Then, legislatures were defining who was or was not a citizen; now we have a single person, the US Attorney, defining citizenship and who is or is not entitled to rights of citizenship.

Moreover, how is the US Attorney’s decision not a redefinition of state citizenship?  The impetus behind the 14th Amendment was to forever put the question of citizenship and the rights of citizenship forever beyond the reach of the legislature.  If the federal legislature cannot redefine state citizenship and the rights of state citizenship, how can it delegate that authority to a federal executive officer?

I am not saying that under the current interpretation of the commerce clause, the federal legislature cannot pass the Hobbs Act. I am saying that if they pass something like the Hobbs Act state law has to be preempted in all cases.  Federal authorities have to investigate and prosecute every single armed robbery case.  To do otherwise, as we do now, necessarily gives the US Attorney the arbitrary power to deny equal protection to those he chooses to prosecute.

Do you know how the federal authorities investigate cases now? They wait for the local authorities to spend their time and money to do all the legwork and then “adopt” the case for federal prosecution.  (As far as I have found, this concept of “adoption” is totally made-up.)

The cap and tax’s building code is a direct assault on the state’s “exclusive” power over real estate and property law.  First, a little background.

By today’s standards, one can make an irrefutable argument that Constitution gives the federal legislature the power to pass local parking regulations:  Automobiles travel interstate. People drive them to stores to buy merchandise which itself has traveled interstate.  Since the federal legislature has the power to regulate anything that directly or indirectly affects interstate commerce and since parking affects interstate commerce, the federal legislature can pass exclusive parking regulations.

Any law made in pursuant to the Constitution is the “supreme law of the land” and “judges in every state are bound thereby” irrespective of the constitution or laws of that state.  In other words, if the Constitution empowers the federal legislature to pass some law, it is the only law.

There seems to be two conditions for nullification or preemption of state law by federal law.  First, the federal law must be authorized by the constitution. Second, the state law must conflict with the federal law.

Given the expansive interpretation of the interstate commerce clause (Wickard v. Filburn), few federal laws will be found to exceed it.  These days, nobody is going to spend time or money arguing that such-and-such federal law exceeds the delegated power of the commerce clause.

The only practical rebuttal to the federal parking regulations above is that states have historically regulated parking. Courts sympathetic to the principles of federalism have developed the clear statement doctrine.  It says that if congress intends to alter the historical relations between the states and the central government, it must say so clearly and unambiguously.

However, the purpose of the clear statement doctrine is to divine the intent of congress vis a vis state laws, not to determine whether congress has the constitutional power — that is assumed.  In other words, a question arising about the scope of preemption of the federal parking regulations can be resolved by congress clearly and unambiguously stating its intent to preempt all other parking regulations.

If congress has the constitutional power to pass a law, it has the power to preempt state laws and constitutions.  If it has power to preempt state laws and constitutions, the state never had that power in the first place.  Until the time congress preempts the state law, the states have been acting by the authority granted it not by its people through the state constitution but by the forbearance of federal legislators – congress is letting the states regulate.  In other words, the people delegated power to the federal government which temporarily delegated it to the state governments.  The federal government may revoke its temporary delegation to the states at its will.

If the federal legislature preempted all state laws and constitutions to the extent of the power purportedly granted it by the commerce clause, it is hard to see any authority remaining in the state.  This general preemption leads to absurd but necessary conclusions.

Consider criminal law.  States have always prosecuted and punished armed robberies.  The federal Hobbs Act is a statute allowing federal prosecution of armed robberies affecting interstate commerce.  Since all armed robberies affect interstate commerce, all armed robberies are violations of the Hobbs Act.* (One case cited in the US Attorney’s manual was found to affect interstate commerce because the stolen money was going to be used to buy goods from interstate commerce!)

If the federal congress can punish all armed robberies, it can expressly preempt all existing state armed robbery laws.  If it can preempt all state armed robbery laws, states never had the power to punish them in the first place.  That states have prosecuted these crimes up till now is because the federal congress lets them.

The same argument goes for federal building codes.  If the federal government has the ability to pass federal building codes now, it has always had it.  Of course, they will argue that they are not preempting the whole building code just a part of it.  But I hope it is clear that asserting that the federal legislature can preempt part of the local building code is an argument that it can preempt all of it.  It is an assertion that the state never really had the power in the first place.

*The current ability to select state or federal law for prosecution raises a host of issues which will not be addressed here.

The other day I wrote about how federal building codes preempt state law and the absurd logic supporting federal building codes.

Today on Limbaugh (via Boehner I think), I heard that cap and tax imposed the California building on the country.  It was also said that a provision of the cap and tax imposed an environmental inspection requirement on homeowners when they sell their property.

That provision has three problems. 1) it is a warrantless search, 2) it is a condemnation requiring compensation, and 3) it commandeers municipal workers to enforce federal law.

Regarding the warrantless search, one of my favorite Supreme Court cases is CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967).  Camara was charged with housing code violation for refusing to allow housing inspectors to perform a warrantless search of his apartment. City officials had no knowledge of violations; they wanted to go in and look for them.

In ruling against the city, Justice White said: ”It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.”  The anomaly comes from the opposite reasoning: the city had to contend that Camara had less 4th Amendment protection because he was not committing a crime.

In adopting a zoning ordinance, cities may impose a 25′ setback line, that is, the building has to be more than 25′ from the road.  The problem is many existing structures, having been build before the new zoning law, were closer than 25′.  The city has two choices: condemn building and pay just compensation to the owner, or allow the violation to continue as a non-conforming. If the owner ever tears down the building and doesn’t rebuild, the next structure has to be 25′.

Doubtless most of the existing houses don’t comply with the California building code or those new restrictions under the cap and tax.  Imagine if someone invented an alloy that was exponentially better environmentally and safety-wise than copper wire.  Could the federal government enter your house with a warrantless search and compel you to rip out your old wiring without paying for it?  If you cannot sell your house because it does not pass the newly passed federal standards, that is a condemnation for which just compensation should be demanded.

Furthermore, consider the fact that when the house was built it was inspected and approved by the municipal building inspector.  You built your house in reliance of the building inspector’s approval.  Is that approval now revoked?

The third point – commandeering of municipal officers – I addressed in my first post.  Briefly, the building and zoning officer’s enforcement power is limited to enforcing the lawfully adopted local building code.  If there is a federal code, who is going to enforce it?  Can the federal government grant local government’s the power to make and adopt laws if the state legislature has not?  Will the alleged violations be enforced in federal courts by the municipal building officer?

State and local politicians ought to be alarmed at the authority that’s being taken from them.

The cap and tax bill purportedly imposes new building codes.

In Pennsylvania, the only entity that can pass any laws is the state legislature. The state legislature delegates some authority to boroughs, townships, and cities at various levels through the municipal codes and enabling acts.

Enabling acts delegate administrative authority to municipalities.  If municipalities exercise authority beyond the scope of the enabling act, it is exercising general legislative power which it does not have. A township council cannot simply dream up a law and pass an ordinance if there is no enabling act.

So municipalities adopt their zoning and building codes pursuant to state enabling laws.  What does it mean if the federal cap and tax law indeed alters municipal zoning and building codes?

First, the building and zoning officers only have authority to enforce the building and zoning codes adopted by the municipality.  To initiate an enforcement action, the building officer must cite the specific section of the building code that is allegedly being violated.  This makes sense because the defendant has to know what he is being charged with in order to defend.  If the building officer cites the federal law, it is an admission that he is enforcing a law he has no authority to enforce.  Moreover, since it is a federal question, I believe the action can be removed to federal court.

Second, some may argue that the federal cap and tax law preempt or supercede state building and zoning enabling laws.  In other words, the federal cap and tax law enables municipalities to adopt and modify building and zoning codes beyond the authority given them by the state legislature.

If the federal legislature can preempt parts of state zoning and building code law, it can expressly preempt all of it. If the federal legislature can preempt all state building and zoning law now, it had the power to do so from signing of the US Constitution.  If the federal legislature always had the power to pass building and zoning codes, the states never had that power.  The fact that the states have always exercised that power was not because the state citizens granted it that power through the state constitution, but because of the forbearance of the federal government. Furthermore, the state citizens could not have granted the state that power because they had already delegated it to the federal government.

I always believe that the last bastion against alleged federal power under the commerce clause was real property law.  I guess it’s not.

Malpractice reform at the federal level is incomprehensible.  Since medical malpractice is mostly state common law, how would that work? It would mean that the federal legislature would have to have the ability to abrogate the common law of all the states.  To do so, they would have to have a federal law.  And, if there is a federal law, all malpractice cases would be federal cases, to be tried in federal court as a federal question.

If it is claimed that it’s doable under the interstate commerce clause, then automobile accidents fall under the commerce clause as well.  If automobile accidents are able to be regulated federally, every other tort imaginable is subject to the federal reach.  If, under the commerce clause, the federal legislature it can preempt all state common and statutory law, it virtually dissolves state judiciaries — nothing they say on federal tort law is binding.  In other words, the state judiciaries would be dissolves along with the states as sovereign entities.

I hate to side with the tort lawyers but I think every one of these federal legislators who yammers on about medical malpractice reform knows it’s impossible to do federally. I’m afraid that a lot of them on our side engage in this deception.

See Peter Passell. “Race, Mortgages and Statistics; The Unending Debate Over a Study of Lending Bias.” New York Times 10 May 1996

Government compelled mortgages were based on a flawed 1990 FRB study.  In 1990, noticing that Blacks and Hispanics did not get as many mortgages as others, the Federal Reserve Bank of Boston commissioned a study to find out why.

Four years after the study’s release, economists and statisticians were divided over the interpretation of that study: “Detractors attack the study as defective in its methodology was tainted by ideological preconceptions. Supporters dismiss their concerns as overblown and wrongheaded.”

…
And the Clinton Administration intensified not-so-friendly efforts to persuade lenders to serve minorities. In one celebrated case, the Justice Department forced a suburban Washington bank that had few black mortgage applicants to open an office in a black neighborhood.

Given the choice between these to views, guess which one prevailed in the Clinton Justice Department:

The study has had an enormous impact on the banking industry. Both the Justice Department and the Massachusetts Attorney General began investigations of lending discrimination in the Boston area shortly after its dissemination.

Again, the True Believers in the Clinton administration sided with those seeing the world through discrimination glasses:

Unequal treatment of minorities isn’t necessarily motived by racism; it can also reflect lesser creditworthiness or other economic disparities. Indeed, while the Boston Fed’s finding that racial discrimination is a significant problem has stiffened regulators’ resolve to police lending practices, skeptics see little in it to justify new efforts to bully banks into lending more to minorities.

Guess who else interpreted the study as showing discrimination:

Not everyone who took a second look at the Boston Fed study has found it wanting. James Carr and Isaac Megbolugbe of the Federal National Mortgage Association’s Office of Housing Research eliminated application records they believed were polluted with inaccurate data and still found strong statistical evidence of bias. John Yinger, an economist at the Maxwell School of Citizenship and Public Affairs at Syracuse University and the author of “Closed Doors, Opportunities Lost” (Russell Sage Foundation) wrote that “despite a few extreme claims about data errors or omitted control variables, the results of the study have held up very well.”

How does this mistaken conclusion manifest itself today. See Andy McCarthy’s take on Obama’s wage and price controls:

In addition, and among other things, the Obama plan, in order “to protect consumers … will call for federal standards for mortgage lenders beyond what the Federal Reserve adopted last year, as well as more aggressive enforcement of the mortgage rules.”  There appears to be not the slightest reflection, in the plan or the Times story, that federal standards for mortgage lenders, and the aggressive enforcement thereof, are what caused the meltdown in the first place.

We now have plenty of empirical proof of who was right about the 1990 study.

I’ve been working on something about federal law, state law and preemption, but I would be remiss if I didn’t point out the preemption problems raised by federal bailouts and federal ownership.

Except for federally chartered banks, corporations, LLC, and other business entities are created under state law.  Those state laws and charters direct how business is conducted: meetings, notifications, voting, etc.

However, under Article VI, laws made pursuant to the Constitution are the supreme law of the land.  If the TARP law is constitutional, does it preempt state corporation law once the federal government buys the corporation? Generally, when a state or local government entity operates a proprietary business (a parking garage, for example) it must operate by the same rules as any other business – no sovereign immunity, for example.

It is problematic when the federal government purchases on on-going business. Is the government entity now immune from local taxes? Is the corporate charter void, preempted? Are the by-laws valid?  If the federal government owns the shares, who votes?  If the federal congress delegated unrestricted authority to the US Treasurer, is he empowered to change the corporate by-laws that do not conform to his objectives?  Why does this not put state chartered competitors at a disadvantage?

Just asking.

It appears Pittsburgh may be the eye of the storm.

1. I ride the train to work from South of Pittsburgh. It goes through a bunch of neighborhoods. I see intermittent Obama signs in the old neighborhoods and in my township. I’ve also seen smatterings of “Democrats For McCain” signs in the old neighborhoods. I’ve also seen people with a whole bunch of local Democrat signs but no Obama signs.

2. I don’t have a sign myself but, as with others I’ve spoken with, there is slight apprehension. These guys are thugs and nobody wants the hassle, e.g., vandalization etc.

3. A former client of mine asked me (a lawyer) to man polling places. Since I never discuss anything personal with clients, he apparently assumed I supported Sen Obama. I asked him what I’d be doing and who I’d actually be representing, he said Obama. I have moral misgivings about doing that, though it’s not against legal ethics. Maybe I should go and bring a camera.

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I don’t know if anyone has actually read the whole book “Prairie Fire,” but you really ought to. It is an extremely disturbing book because we are watching it play out.

The WU identify two impediments to the desired communist revolution: American exceptionalism and reformism.

Here is the section from pages 13 and 14 of Prairie Fire:

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