Federalism for Dummies | Opinion

Photo illustration by Craig Tuggle.

I love the “for Dummiesbook series. They can teach an old dog new tricks without making the old dog feel stupid, although, I admit, “Get out of debt for dummies” wasn’t all that useful. (Turns out one must spend less than one earns; if they had just written that on the cover, I’d be $18.79 closer to my financial goals.)

The series pretty much answers all life’s questions, from how to stop killing houseplants to Astrophysics for Dummies. So, naturally, when confronted with last week’s dizzying patchwork from the U.S. Supreme Court, I turned to “Critical thinking for dummies,” desperate to decipher how “federalism” means one thing when the court talks about bribery and corruption, but something entirely different when it talks about abortion or guns.

Federalism’s new definition of corruption

Last week, Republicans on the Supreme Court decided that bribing an elected official isn’t bribery if you wait a few days and call it a gratuity instead. In Snyder, six conservative justices agreed that gifts, money or things of value from grateful citizens who simply wish to “thank” public officials for their service is a “gratuity,” not a “bribe,” so the federal bribery statute doesn’t apply.

No doubt Clarence Thomas, who has been thanked to the tune of $4 million dollars for his devotion to guns, fossil fuels and culture wars, appreciated his colleagues’ skillful parsing.

Before conservatives got out their Xacto knives, the federal anti-corruption statute, 18 U.S. Code § 666, made it a crime for officials to corruptly accept anything of value in connection with any business or transaction worth $5,000 or more. James Snyder, former mayor of Portage, Indiana, stepped in it when he steered more than $1 million in city contracts to a local truck dealership, which then turned around and cut Snyder a $13,000 check.

Snyder called the money payment for consulting services; the feds called it illegal.

Snyder was convicted by a federal jury, sentenced to 21 months in prison, and appealed. Reversing, and writing for the 6-3 Republican majority, Justice Kavanaugh determined that bribing an official up front wasn’t the same as tipping them for highly agreeable service after the fact. Treating mere “gratuities” like bribery, he wrote, would infringe on “bedrock federalism principles” and thereby offend States’ “prerogative to regulate” graft for themselves. Kavanaugh reasoned that some “hapless elected official” could get “trapped” by a law that leaves him “entirely at sea,” guessing which expensive gifts he is allowed to accept. “Just Say No” for Dummies, anyone?

Justice Jackson’s snarky and spot-on dissent called such an “absurd and a textual reading of the statute” an interpretation that “only today’s Court could love.” Ignoring the advice she read in “Blind deference for Dummies,” Jackson wrote forcefully that, “The Court’s reasoning elevates nonexistent federalism concerns over the plain text” of the federal anti-corruption statute.

Federalism means something else when it comes to guns

The court’s newfound respect for state law on corruption — finding there was no corruption — is hard to square with its earlier decisions annihilating state law. Take guns for example. In 2022, the Bruen Courtstruck down New York’s conceal carry law, citing Federalism four times, because the state couldn’t identify a concealed carry law that existed in 1790. Never mind that colonial era muskets, pistols and bayonets were too large to be concealed in anyone’s haversacks; colonial law didn’t bar people from strapping loaded cannons onto their backs either.

But then, last week’s Rahimi case about domestic violence and guns forced conservative justices to see Bruen’s “historical antecedent” absurdity up close. In Rahimi, Texas’ blood-red Court of Appeals for the 5th Circuit followed Bruen and ruled that violent offenders under restraining orders could have guns because there was no law from 1790 that said they couldn’t.

Citing the Federalist papers nine times, Rahimi revealed the stink of Bruen’s “trapped in amber” jurisprudence, and left the Court with a choice: stick to Thomas’ wholly made up “historical antecedent” requirement by arming known violent offenders — and shed the Court’s last hair of credibility — or follow common sense and admit they were wrong. They didn’t quite admit error (see,“Reluctant mea culpa for Dummies”), but they did decide that violent men who brutalized their victims ought not have a gun to finish the job.

Using Federalism to defeat Equal Protection

This rant closes, as it must, with Dobbs, another bombshell from Trump and the Republicans on the high court.

Whatever you think about abortion, bracket that opinion long enough to consider: Would federalism allow states to mandate vasectomies for all men under 50, given that states now have the power to make life and death decisions without regard to pesky strictures of Equal Protection?

Up next: “How to impeach justices who lie to Congress during their confirmation hearings for dummies.”

Sabrina Haake is a columnist and 25 year litigator specializing in 1st and 14th Amendment defense. Her Substack, The Haake, is free.


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