Some Responses on McCutcheon and Campaign Finance Legislation

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.


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”



The Worst Post on Recess Appointments?

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.


The Ninth Circuit on Foreign Relations Federalism

The Ninth Circuit (Judge Harry Pregerson writing) had an interesting recent decision regarding foreign relations federalism in Cassirer v. Thyssen-Bornemisza Collection Foundation. The case involves California Code of Civil Procedure § 338(c)(3), which extends the statute of limitations for suit for the recovery of fine art against a museum, gallery, auctioneer, or dealer.