A Sanctuary State of the Right


Montana

Montana’s GOP-controlled legislature recently enacted a law barring state and local law enforcement from helping to enforce federal gun restrictions. While much media coverage portrays this as a case  of “nullification,” it is actually quite similar to liberal state and local governments’ sanctuary laws, restricting assistance to enforcement of federal laws targeting undocumented immigrants for deportation.

Both immigration sanctuary laws and Montana’s gun laws deny state and local assistance to federal officials seeking to enforce the laws and regulations in question. But, unlike true nullification efforts (such as those advocated by John C. Calhoun and others in the nineteenth century) they do not deny that those laws apply within the state, and do not prevent federal officials from trying to enforce the laws in question themselves.

Importantly, sanctuary laws do not protect state and local officials against having to follow federal law themselves (e.g.—they don’t authorize them to violate federal constitutional rights). They merely block them from enforcing specific federal laws against potential violations by private parties.

USA Today has a helpful summary of the Montana law, which belies its own headline’s misleading description (which wrongly describes the Montana law as “nullifying” the federal one):

Gov. Greg Gianforte on Friday signed a bill that prohibits state and local law enforcement in Montana from enforcing federal bans on firearms, ammunition and magazines….

Montana law would prohibit law enforcement officials and other state employees from enforcing, implementing or spending state funds to uphold federal bans on particular kinds of firearms, ammunition and magazines.

While sanctuary laws do not render federal law inoperative, they do make it harder to enforce. In many cases, the federal government simply lacks the resources and personnel needed to enforce its laws without substantial state and local assistance. There are vastly more state and local law enforcement officers and than federal ones.

Trump-era efforts to use ICE raids to offset immigration sanctuaries had only very limited success. If the Biden administration tries to use federal ATF agents to offset Montana’s policy, it may well run into similar constraints.

The Trump administration launched an extensive campaign to try to pressure liberal immigration sanctuary jurisdictions into giving up their policies. Most of these efforts were struck down by courts because they ran afoul of constitutional prohibitions on federal “commandeering” of state and local government, and executive imposition of conditions on state recipients of federal funds without congressional authorization. Liberal Democrats were happy to use constitutional protections for federalism to protect sanctuary cities and states against Trump, while  many Republicans advocated broad theories of federal power to try to get around those limits.

Now that there is a Democrat in the White House, and  the issue is gun rights, rather than immigration, the shoe is on the other foot. Many of those who defended liberal sanctuary jurisdictions are likely to denounce the Montana law, and vice versa. “Fair weather federalism” is a ubiquitous element of American politics, and will probably  crop up again in this case.

I am one of the relatively few people who sympathize with both liberal immigration sanctuaries, and conservative gun gun sanctuaries. To my mind, both are countering federal laws that are at best counterproductive, and at worst deeply harmful and unjust.

But, even aside from the merits of specific policies, there is great value in having a federal system that leaves room for sanctuary jurisdictions of various ideological stripes. I outline some of the reasons why here:

[T]here is a good deal of inconsistency and “selective morality” in the discourse over sanctuary cities. People who sympathize with left-wing sanctuary causes tend to condemn right-wing ones, and vice versa, even in cases where the legal and moral issues involved are remarkably similar. Such ideological—and often even purely partisan—bias is part of the broader phenomenon of “fair weather federalism,” where both Republicans and Democrats all too often condemn or praise limitations on federal power depending primarily on whose ox is being gored…..

I would prefer a broader and more principled commitment to limiting federal power, on both left and right. But I fear we may not get it anytime soon.

In the meantime, even hypocritical sanctuary movements can still provide valuable foot-voting options and protect people against overreaching federal government policies. Immigration sanctuaries can still provide valuable refuge to undocumented immigrants, their families, and those who seek to engage in various economic and social transactions with them. Gun-rights sanctuaries can do the same for those who place a high value on the right to bear arms. And they can serve that purpose even if the politicians who enact such policies are doing so primarily out of ideological or partisan bias, rather than any principled commitment to limiting federal power.

 

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A Sanctuary State of the Right


Montana

Montana’s GOP-controlled legislature recently enacted a law barring state and local law enforcement from helping to enforce federal gun restrictions. While much media coverage portrays this as a case  of “nullification,” it is actually quite similar to liberal state and local governments’ sanctuary laws, restricting assistance to enforcement of federal laws targeting undocumented immigrants for deportation.

Both immigration sanctuary laws and Montana’s gun laws deny state and local assistance to federal officials seeking to enforce the laws and regulations in question. But, unlike true nullification efforts (such as those advocated by John C. Calhoun and others in the nineteenth century) they do not deny that those laws apply within the state, and do not prevent federal officials from trying to enforce the laws in question themselves.

Importantly, sanctuary laws do not protect state and local officials against having to follow federal law themselves (e.g.—they don’t authorize them to violate federal constitutional rights). They merely block them from enforcing specific federal laws against potential violations by private parties.

USA Today has a helpful summary of the Montana law, which belies its own headline’s misleading description (which wrongly describes the Montana law as “nullifying” the federal one):

Gov. Greg Gianforte on Friday signed a bill that prohibits state and local law enforcement in Montana from enforcing federal bans on firearms, ammunition and magazines….

Montana law would prohibit law enforcement officials and other state employees from enforcing, implementing or spending state funds to uphold federal bans on particular kinds of firearms, ammunition and magazines.

While sanctuary laws do not render federal law inoperative, they do make it harder to enforce. In many cases, the federal government simply lacks the resources and personnel needed to enforce its laws without substantial state and local assistance. There are vastly more state and local law enforcement officers and than federal ones.

Trump-era efforts to use ICE raids to offset immigration sanctuaries had only very limited success. If the Biden administration tries to use federal ATF agents to offset Montana’s policy, it may well run into similar constraints.

The Trump administration launched an extensive campaign to try to pressure liberal immigration sanctuary jurisdictions into giving up their policies. Most of these efforts were struck down by courts because they ran afoul of constitutional prohibitions on federal “commandeering” of state and local government, and executive imposition of conditions on state recipients of federal funds without congressional authorization. Liberal Democrats were happy to use constitutional protections for federalism to protect sanctuary cities and states against Trump, while  many Republicans advocated broad theories of federal power to try to get around those limits.

Now that there is a Democrat in the White House, and  the issue is gun rights, rather than immigration, the shoe is on the other foot. Many of those who defended liberal sanctuary jurisdictions are likely to denounce the Montana law, and vice versa. “Fair weather federalism” is a ubiquitous element of American politics, and will probably  crop up again in this case.

I am one of the relatively few people who sympathize with both liberal immigration sanctuaries, and conservative gun gun sanctuaries. To my mind, both are countering federal laws that are at best counterproductive, and at worst deeply harmful and unjust.

But, even aside from the merits of specific policies, there is great value in having a federal system that leaves room for sanctuary jurisdictions of various ideological stripes. I outline some of the reasons why here:

[T]here is a good deal of inconsistency and “selective morality” in the discourse over sanctuary cities. People who sympathize with left-wing sanctuary causes tend to condemn right-wing ones, and vice versa, even in cases where the legal and moral issues involved are remarkably similar. Such ideological—and often even purely partisan—bias is part of the broader phenomenon of “fair weather federalism,” where both Republicans and Democrats all too often condemn or praise limitations on federal power depending primarily on whose ox is being gored…..

I would prefer a broader and more principled commitment to limiting federal power, on both left and right. But I fear we may not get it anytime soon.

In the meantime, even hypocritical sanctuary movements can still provide valuable foot-voting options and protect people against overreaching federal government policies. Immigration sanctuaries can still provide valuable refuge to undocumented immigrants, their families, and those who seek to engage in various economic and social transactions with them. Gun-rights sanctuaries can do the same for those who place a high value on the right to bear arms. And they can serve that purpose even if the politicians who enact such policies are doing so primarily out of ideological or partisan bias, rather than any principled commitment to limiting federal power.

 

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Clifford Winston (Brookings) Guest-Blogging on “Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform”

I’m delighted to report that Clifford Winston, from the Brookings Institution, will be guest-blogging this week about Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform, which he cowrote with David Burk and Jia Yan. Here’s the publisher’s summary:

Deregulating the legal profession will benefit society by improving access to legal services and the efficacy of public policies.

Lawyers dominate a judicial system that has come under fire for limiting access to its services to primarily the most affluent members of society. Lawyers also have a pervasive influence throughout other parts of government. This is the first book offering a critical comprehensive overview of the legal profession’s role in failing to serve the majority of the public and in contributing to the formation of inefficient public policies that reduce public welfare.

In Trouble at the Bar, the authors use an economic approach to provide empirical support for legal reformers who are concerned about their own profession. The authors highlight the adverse effects of the legal profession’s self-regulation, which raises the cost of legal education, decreases the supply of lawyers, and limits the public’s access to justice to the point where, in general, only certified lawyers can execute even simple contracts. At the same time, barriers to entry that limit competition create a closed environment that inhibits valid approaches to analyzing and solving legal problems that are at the heart of effective public policy.

Deregulating the legal profession, the authors argue, would allow more people to provide a variety of legal services without jeopardizing their quality, reduce the cost of those services, spur competition and innovation in the private sector, and increase the quality of lawyers who pursue careers in the public sector. Legal practitioners would enjoy more fulfilling careers, and society in general and its most vulnerable members in particular would benefit greatly.

And the blurbs:

Trouble at the Bar is an extraordinary book. It surveys and analyzes—with great conceptual and empirical sophistication—the organization of the entire U.S. legal system and the legal professionals who staff it, from the dreams of students choosing to attend lower-rated law schools to lawyers working in the office of the Solicitor General to the lawyers on the Supreme Court itself. Every person in America should understand at some level the operation of the legal profession. Trouble at the Bar provides the basis for that understanding.”—George L. Priest, Edward J. Phelps Professor of Law and Economics, Yale Law School

Trouble at the Bar takes an empirically based hard look at the state of the legal profession in the United States. It examines the barriers in place for regulating entry through law schools and restrictions placed on purveyors of legal services. It makes a compelling case for deregulating many aspects of the profession and opening it up to fresh approaches. It is a serious book about a serious problem and warrants a close read.”—Jame J. Heckman, Henry Schultz Distinguished Service Professor in Economics, University of Chicago; research fellow, American Bar Foundation

I much look forward to the posts.

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Clifford Winston (Brookings) Guest-Blogging on “Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform”

I’m delighted to report that Clifford Winston, from the Brookings Institution, will be guest-blogging this week about Trouble at the Bar: An Economics Perspective on the Legal Profession and the Case for Fundamental Reform, which he cowrote with David Burk and Jia Yan. Here’s the publisher’s summary:

Deregulating the legal profession will benefit society by improving access to legal services and the efficacy of public policies.

Lawyers dominate a judicial system that has come under fire for limiting access to its services to primarily the most affluent members of society. Lawyers also have a pervasive influence throughout other parts of government. This is the first book offering a critical comprehensive overview of the legal profession’s role in failing to serve the majority of the public and in contributing to the formation of inefficient public policies that reduce public welfare.

In Trouble at the Bar, the authors use an economic approach to provide empirical support for legal reformers who are concerned about their own profession. The authors highlight the adverse effects of the legal profession’s self-regulation, which raises the cost of legal education, decreases the supply of lawyers, and limits the public’s access to justice to the point where, in general, only certified lawyers can execute even simple contracts. At the same time, barriers to entry that limit competition create a closed environment that inhibits valid approaches to analyzing and solving legal problems that are at the heart of effective public policy.

Deregulating the legal profession, the authors argue, would allow more people to provide a variety of legal services without jeopardizing their quality, reduce the cost of those services, spur competition and innovation in the private sector, and increase the quality of lawyers who pursue careers in the public sector. Legal practitioners would enjoy more fulfilling careers, and society in general and its most vulnerable members in particular would benefit greatly.

And the blurbs:

Trouble at the Bar is an extraordinary book. It surveys and analyzes—with great conceptual and empirical sophistication—the organization of the entire U.S. legal system and the legal professionals who staff it, from the dreams of students choosing to attend lower-rated law schools to lawyers working in the office of the Solicitor General to the lawyers on the Supreme Court itself. Every person in America should understand at some level the operation of the legal profession. Trouble at the Bar provides the basis for that understanding.”—George L. Priest, Edward J. Phelps Professor of Law and Economics, Yale Law School

Trouble at the Bar takes an empirically based hard look at the state of the legal profession in the United States. It examines the barriers in place for regulating entry through law schools and restrictions placed on purveyors of legal services. It makes a compelling case for deregulating many aspects of the profession and opening it up to fresh approaches. It is a serious book about a serious problem and warrants a close read.”—Jame J. Heckman, Henry Schultz Distinguished Service Professor in Economics, University of Chicago; research fellow, American Bar Foundation

I much look forward to the posts.

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“President Trump, Justice Thomas, and the Future of Social Media”: A National Constitution Center Podcast Episode,

You can listen to the episode (part of the We The People series) here; the summary:

Recently, the Supreme Court seemingly put an end to the legal battle over whether President Trump violated the First Amendment by blocking people on Twitter by instructing the lower court to declare the case moot. Justice Thomas authored a separate concurring opinion that expanded the on the language of the Court’s decision to discuss the power of social media platforms over free speech. This week, we discuss that opinion and the potential broader impacts of this case—now known as Biden v. Knight First Amendment Institute due to the change in administrations—on the future of the First Amendment. Katie Fallow, senior staff attorney at the Knight First Amendment Institute who led litigation of this case since its inception, and Eugene Volokh, professor of law at UCLA Law, joined host Jeffrey Rosen.

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Algerian Islamic Scholar Gets 3 Years in Prison for “Offending Islam”

So reports the BBC:

[Said Djabelkhir] was tried after seven lawyers and a fellow academic lodged complaints against him for disrespecting Islam.

Mr Djabelkhir had said the animal sacrifice during the Muslim festival of Eid was based on a pre-Islamic pagan ritual.

He also suggested that parts of the Quran, such as the story of Noah’s Ark, might not be literally true and criticised practices including the marriage of young girls in some Muslim societies.

[Algerian] law imposes a fine or prison sentence on “anyone who offends the Prophet or denigrates the dogmatic precepts of Islam, whether it be by writings, drawings, a statement or another means”….

[Djabelkhir] recently told AFP that “the traditional readings [of the Quran] no longer meet the expectations, needs and questions of modern man”.

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via IFTTT

“President Trump, Justice Thomas, and the Future of Social Media”: A National Constitution Center Podcast Episode,

You can listen to the episode (part of the We The People series) here; the summary:

Recently, the Supreme Court seemingly put an end to the legal battle over whether President Trump violated the First Amendment by blocking people on Twitter by instructing the lower court to declare the case moot. Justice Thomas authored a separate concurring opinion that expanded the on the language of the Court’s decision to discuss the power of social media platforms over free speech. This week, we discuss that opinion and the potential broader impacts of this case—now known as Biden v. Knight First Amendment Institute due to the change in administrations—on the future of the First Amendment. Katie Fallow, senior staff attorney at the Knight First Amendment Institute who led litigation of this case since its inception, and Eugene Volokh, professor of law at UCLA Law, joined host Jeffrey Rosen.

from Latest – Reason.com https://ift.tt/32JlrMr
via IFTTT

Algerian Islamic Scholar Gets 3 Years in Prison for “Offending Islam”

So reports the BBC:

[Said Djabelkhir] was tried after seven lawyers and a fellow academic lodged complaints against him for disrespecting Islam.

Mr Djabelkhir had said the animal sacrifice during the Muslim festival of Eid was based on a pre-Islamic pagan ritual.

He also suggested that parts of the Quran, such as the story of Noah’s Ark, might not be literally true and criticised practices including the marriage of young girls in some Muslim societies.

[Algerian] law imposes a fine or prison sentence on “anyone who offends the Prophet or denigrates the dogmatic precepts of Islam, whether it be by writings, drawings, a statement or another means”….

[Djabelkhir] recently told AFP that “the traditional readings [of the Quran] no longer meet the expectations, needs and questions of modern man”.

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