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In a divided ruling yesterday, the Supreme Court seemed to set a low bar for what sort of robbery offenses count as a “violent felony” under federal law.

The case, Stokeling v. United States, involved a career criminal facing a 15-year minimum prison sentence following his latest conviction, this time on a federal gun charge. It split the Court along interesting lines. Justice Stephen Breyer, normally associated with the Court’s liberal wing, voted with Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Samuel Alito in the majority. Chief Justice John Roberts, meanwhile, joined his more liberal colleagues—Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan—in the minority.

The actual facts of the case were not in question. After he was arrested in Florida on suspicion of burglary in 2015, police found a handgun in Denard Stokeling’s backpack. He eventually pleaded guilty and was convicted of illegally possessing the gun and ammunition. Thanks to the Armed Criminal Career Act (ACCA), which sets penalties for people convicted on federal gun charges who have three or more “violent felony” convictions on their record, Stokeling faced a minimum of 15 years behind bars.

Stokeling did not dispute that he had previously been convicted of home invasion, kidnapping, and robbery. But he did say the 1997 robbery conviction, stemming from an incident where he tried to steal necklaces right off a woman’s neck, should not have qualified as a “violent felony.” Rather than a minimum sentence of 15 years in prison for his gun conviction, Stokeling said he should be facing no more than 87 months (a little over seven years), according to CNN.

At issue was the definition of a “violent felony” under the ACCA and whether or not it encompasses Florida’s definition of “robbery.” According to the ACCA, a “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Florida law, meanwhile, says that “robbery” is “the taking of money or other property…from the person or custody of another…when in the course of the taking there is the use of force, violence, assault, or putting in fear.” And as Thomas noted in his majority opinion, the Florida Supreme Court “has explained that the ‘use of force’ necessary to commit robbery requires ‘resistance by the victim that is overcome by the physical force of the offender.'”

In other words, robbery is not necessarily classified as a “violent felony” under the ACCA. “Physical force,” on the other hand, is. But the question in this case, as SCOTUSblog pointed out in October, did not involve the level of physical force Stokeling used in the necklace incident. Rather, the Court had to determine whether it’s possible, under Florida’s definition of robbery, to commit the crime without using “physical force.” If it is, then convictions under Florida’s robbery law, and possibly other states’ robbery statutes as well, wouldn’t qualify as violent felonies under the ACCA.

Ultimately, the Court said it’s not, with Thomas writing that the ACCA “encompasses robbery offenses that require the criminal to overcome the victim’s resistance.”

“Robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle,” he wrote for the majority. “The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself ‘capable of causing physical pain or injury.'”

Thomas was quoting the late Justice Antonin Scalia’s majority decision in Johnson v. United States, which also involved the ACCA. The kind of physical force that could conceivably injure a victim, Thomas argued, “includes the amount of force necessary to overcome a victim’s resistance.”

But “Florida robbery…covers too broad a range of conduct to qualify as a ‘violent felony’ under the ACCA,” wrote Sotomayor in her dissent. She particularly took issue with Thomas’s wide interpretation of the word “capable.” In Johnson, “the Court could not have meant ‘capable’ in the ‘potentiality’ sense,” she said. “Rather, it meant it in the sense that its entire text indicates: ‘force capable of causing physical pain or injury’ in the sense that a ‘strong’ or ‘substantial degree of force’ can cause physical pain or injury,” she added, referencing the Johnson decision.

Sotomayor provided a few examples to back up her reasoning. “As any first-year torts student (or person with a shoulder injury) quickly learns, even a tap on the shoulder is ‘capable of causing physical pain or injury’ in certain cases,” she wrote, alluding to her recent shoulder dislocation.

Even minor uses of force fall under Florida’s definition of robbery, she said. But these are not violent felonies. “For example, the force element of Florida robbery is satisfied by a pickpocket who attempts to pull free after the victim catches his arm,” Sotomayor wrote. “A thief who grabs a bag from a victim’s shoulder also commits Florida robbery, so long as the victim instinctively holds on to the bag’s strap for a moment.”

“Florida law applies the label ‘robbery’ to crimes that are, at most, a half-notch above garden-variety pickpocketing or shoplifting” she concluded. And locking up such offenders for 15 years is not all necessary, she suggested.

Sotomayor does bring up some interesting points. In this case, it’s hard to have sympathy for Stokeling, who’s clearly a career criminal (whether he deserves to be put away for 15 years is another question). But it’s certainly possible to envision a scenario where a habitual pickpocketer or shoplifter is eventually convicted on a gun charge and sentenced to prison for longer than he or she deserves.

It remains to be seen what ramifications this ruling will have on future cases. In the meantime, you can read Thomas’s majority opinion and Sotomayor’s dissent here.

At his confirmation hearing yesterday, William Barr, Donald Trump’s nominee to replace Jeff Sessions as attorney general, said he will not target state-licensed marijuana businesses, although he called the current conflict between federal prohibition and state legalization “untenable.” In response to questioning by Sen. Cory Booker (D-N.J.), Barr said he would prefer a uniformly enforced federal ban on marijuana but recognizes that the Obama administration’s accommodation of the newly legal cannabis industry, as reflected in a 2013 memo from then-Deputy Attorney General James Cole, created expectations on which investors have reasonably relied.

Although Sessions officially rescinded the Cole memo a year ago, U.S. attorneys have shown little enthusiasm for cracking down on marijuana suppliers who comply with state law, and Barr said he is not interested in doing that either. “I’m not going to go after companies that have relied on the Cole memorandum,” Barr said. “My approach to this would be not to upset settled expectations and the reliance interests that have arisen as a result of the Cole memorandum. Investments have been made, so there [has] been reliance on it. I don’t think it’s appropriate to upset those interests.”

Barr, an old-fashioned drug warrior, made it clear that he is not a fan of legalization. “We either should have a federal law that prohibits marijuana everywhere, which I would support myself, because I think it’s a mistake to back off from marijuana,” he said, or “if we want a federal approach, if we want states to have their own laws, let’s get there, and let’s get there the right way.” In response to a subsequent question from Sen. Thom Tillis (R-N.C.), Barr clarified that he meant Congress should change federal law if it wants the states free to set their own marijuana policies.

Although Barr’s remarks will be reassuring to all those cannabis investors, it is worth reflecting on his position that federalism is something Congress deigns to grant the states, as opposed to something the Constitution requires. Today marks 100 years since the ratification of the 18th Amendment, the result of an arduous process that prohibitionists recognized as the only legal way to accomplish their goal, because otherwise the federal government would not have had the authority to ban the manufacture and sale of alcoholic beverages. After the 18th Amendment was repealed in 1933, Congress no longer had that authority (except with respect to interstate trafficking in violation of state law, which the 21st amendment specifically addressed). There is no logical reason why these observations about the limits of federal power would apply to alcohol but not marijuana.

In fact, Harry Anslinger, the ardent pot prohibitionist who ran the Federal Bureau on Narcotics (FBN) from 1930 to 1962, conceded that Congress did not have the constitutional authority to ban marijuana. In 1931, as Anslinger was preparing a model marijuana prohibition law for the states, The New York Times noted that “there are no Federal laws on the growth or use of marijuana, the plant being grown so easily that there is almost no interstate commerce in it.” The Times reported that Anslinger “said the government under the Constitution cannot dictate what may be grown within individual States.” As late as 1937, the Times was saying the FBN “has admitted that its hands are tied by the fact that the marihuana weed is indigenous to so many States that its distribution is an intrastate problem.”

Later that year, when Congress passed the law that effectively banned marijuana at the federal level, it was framed as an exercise of the tax power, like the Harrison Narcotics Tax Act of 1914 (or, to take a more recent example, the individual insurance mandate imposed by the Patient Protection and Affordable Care Act of 2010). That’s the sort of maneuver Congress uses to accomplish indirectly what it lacks the authority to do directly. But when Congress passed the Controlled Substances Act of 1970, which includes a direct ban on marijuana, it abandoned any pretense of revenue raising. By then, thanks to a series of Supreme Court rulings that began a few years after the Marihuana Tax Act was passed, legislators took it for granted that they could do almost anything they wanted and justify it as an exercise of the power to regulate interstate commerce.

Those rulings culminated in Gonzales v. Raich, the 2005 decision in which the Court said that power somehow reaches a bag of marijuana in a cancer patient’s nightstand, even if the dried plant matter never crossed state lines, even if she grew it herself, and even if state law allowed her to do so. “If Congress can regulate this under the Commerce Clause,” Justice Clarence Thomas observed in his dissent, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

Even Harry Anslinger understood what the Supreme Court now routinely denies: that interstate commerce does not include conduct that is not interstate or not commercial, let alone conduct that is neither. Barr complained that state marijuana legalization is “almost like a back-door nullification of federal law.” But that is a bad thing only if the federal law is legitimate, which marijuana prohibition is not.

On Wednesday, Speaker of the House Nancy Pelosi (D–Calif.) asked President Trump to delay his State of the Union address due to security concerns stemming from the government shutdown. Alternatively, Trump could simply submit a written statement in lieu of an in-person speech, noted Pelosi.

If Trump opted for the latter, this would be by far the best thing to come out of the shutdown. The elaborate spectacle of the modern State of the Union speech—a yearly production—is wholly unnecessary. The country would be well rid of it.

As Pelosi noted in her letter, for the first half of the country’s history, virtually all State of the Union speeches—formerly known as the President’s Annual Message to Congress—were delivered to the House of Representatives and read by a clerk. This became standard practice in 1801 with President Thomas Jefferson, who thought an in-person speech would be too reminiscent of a royal proclamation.

Jefferson’s tradition endured until President Woodrow Wilson took office in 1913. Wilson saw the event as an opportunity rally support for his expansive domestic agenda, and subsequent presidents have typically approached it the same way.

One hundred or so State of the Unions later, the executive branch is less constrained than ever before in U.S. history. Wilson’s tradition is not the sole or the predominant cause, but it does contribute to a vision of the president as the central and most important figure in the government, rather than one office amidst three co-equal branches. As Steve Chapman wrote for Reason in 2015, “The State of the Union address has grown in step with presidential presumption. It’s a conspicuous symptom of a dangerous malady: We expect too much of our presidents and limit them too little.”

Trump has not yet responded to Pelosi’s letter, and it’s hard to imagine him passing on a chance to hoard the spotlight. But if the shutdown somehow ends up forcing the government to cancel the State of the Union, I say good riddance.

“Welcome to the team,” CNN’s Chris Cuomo said to former Ohio governor John Kasich last night, shaking the long-rumored presidential candidate‘s enormous right hand. “We are benefited by your presence.”

Kicking off his first appearance as a paid contributor to “the most trusted name in news,” Kasich vowed to “deal with the elephant in the room,” and then promptly did not, if by “elephant” you mean whether he’s going to run for president against Donald Trump in 2020. Instead, he assured viewers that “I’m going to be like an umpire, calling balls and strikes,” and that he was just here “to help people understand, as best as I can, the way things work on the inside.” Oh, “and by the way, this is not me promoting anything, including myself.”

Uh-huh.

It’s true that CNN ranks a frequently distant third in the cable news wars, but even audiences of 700,000 largely geriatric news junkies constitute real promotional opportunities, and not just for reverse mortgages and Chantix. In his initial eight-minute act of political umpiring, covering everything from the William Barr confirmation hearings to the government shutdown to censure of Rep. Steve King (R-Iowa), Kasich managed to fit in more testimonials about himself than a typical cable news contributor might offer in a year.

“Nobody’s going to pressure me, nobody’s going talk me into anything,” he declared, just like normal political commentators do. “I have people that have walked up to me all the time, and they have looked at me as a straight shooter, and they’re of both political parties,” he reported. “I’ve always been an independent, remain an independent person—let’s look at the problem and let’s go fix it,” he said. “I don’t care who the president is, the president has to be big enough to say, ‘Let’s get this behind us.'” And my personal favorite: “When Mitt Romney wrote that op-ed piece, and everybody got worked up down there? I probably would have written three by now.”

So it’s easy to see the benefits from Kasich’s point of view—regular opportunities to self-promote and criticize the political competition in the run-up to a possible campaign announcement, and you get paid? Sign me up! But the real head-scratcher here is the behavior of CNN.

The first cable news network is also frequently the most sanctimonious defender of journalistic nobility, and loudest critic of the way President Donald Trump degrades the norms of America’s political and media culture. And yet here those same people are, paying a newsmaker for exclusivity, and creating a norm that was unthinkable even four years ago.

As CNN Reliable Sources host Brian Stelter dryly phrased it, “In the past, CNN and other cable news channels have broken off ties with commentators once they took specific steps to run for office.” In fact, four years ago this month, that’s exactly what Fox News did with Mike Huckabee.

“I won’t make a decision about running until late in the spring of 2015, but the continued chatter has put Fox News into a position that is not fair to them,” the then-Fox host wrote to his supporters, explaining the mutual decision. “The honorable thing to do at this point is to end my tenure here at Fox so I can openly talk with potential donors and supporters and gauge support.” Fox had severed its contributor contract with presidential contender Ben Carson a few months prior to that.

This is what CNN used to do with potential candidates like Pat Buchanan. As Stelter put it back when he worked for The New York Times, “The benefit to the viewers” in hiring potential candidates as contributors “is less clear. Some experts say the arrangements can cloud the objectivity of the news organizations”:

“As long as they are still newsmakers, there is a strong potential for conflict,” said Andy Schotz, the chairman of the ethics committee for the Society of Professional Journalists. At the very least, it can amount to an advantage for the analysts, and create a perception of favoritism.

It will be interesting to see whether Stelter will show the same interest in probing these conflicts on this weekend’s Reliable Sources.

Next week is National School Choice Week, an annual event that celebrates giving parents and students more options when it comes to education. Reason is a media sponsor of School Choice Week and I’m excited to announce an event that will be held in our Washington, D.C. offices on Wednesday, January 23:

You are cordially invited to join us to discuss how the history of public education in the United States has shaped an environment in which alternatives to traditional public schools are viewed with intense skepticism, making the United States an outlier among liberal democracies, and what the best paths forward are. On January 23 in Washington, DC, Lisa Snell, former Reason Foundation director of education and current director of K-12 education policy partnerships, for the Charles Koch Institute, will interview Ashley Berner, PhD, assistant professor and deputy director of the Institute for Education Policy at Johns Hopkins University about school choice and her book, Pluralism and American Public Education: No One Way to School.

Join us as we explore how educational pluralism—what Berner calls “the democratic norm around the world”—could be the best framework in which to find meaningful political compromise around school choice.

Admission to this event is free of charge and requires advanced registration.

Questions? Email Jackie Pyke at jackie.pyke@reason.org

Our offices are located at 1747 Connecticut Avenue NW (near S Street). Take the Red Line on Metro to Dupont Circle (north exit). The event runs from 6 p.m. to 8 p.m.

More information on the event is here.

To read an excerpt of Berner’s book, go here.

For more information on National School Choice Week, go here.

Reason on education here.