Chief Justice Roberts’ majority opinion in Bond v. United States has been sharply criticized (see here and here), so I’ll say few words partially in its favor. The case has seemed odd from the beginning because the federal statute at issue implements the Chemical Weapons Convention and (as the majority says) the local misuse of household chemicals does not seem the type of activity that is likely to implicate an international treaty.Details
Michael Perry writes:
I share your originalist misgivings about the plurality and Thomas opinions in McCutcheon. However, a reader of your most recent post on the mattermight conclude that you have bought into the “expected applications” version of originalism, and I doubt you mean to do that! So, you might want to say something further about the version of originalism you are bringing to bear in expressing your misgivings about the McCutcheon opinions.
Trying to solve these questions by judicial reasoning rather than historical inquiry converts them from questions about what the framers wrote to questions about what the judge thinks is best.Details
Nullification, as an idea, is simple.
Legislation, as a process, is not.Details
This question just came in on our feedback forum, and I thought it was important enough to discuss that I’d share my answer here.
QUESTION: Is the principle of anti-commandeering synonymous with nullification
ANSWER: It depends on how you define the word “nullification”
Many believe that it is defined only as John Calhoun did in 1830’s South Carolina.
Anti-commandeering is not that process.
What it is, though, is a 100% legal process, backed up by years of Supreme Court precedent, which says that the feds cannot “commandeer” state resources to carry out a federal act or regulatory program. In other words, the states are free to decide if they will participate or not.
Recognizing that many, if not most, federal programs rely heavily on this kind of cooperation, by enacting anti-commandeering laws on various issues around the country, they can have the effect of a practical nullification – rendering federal acts “nearly impossible to enforce”
I think it is not surprising that the leading current commentaries supporting the President — including the four mentioned above — focus on modern needs or on practice long after ratification. The founding-era meaning is clear and straightforward. Cecere’s weak attempt to show otherwise actually confirms it.Details