Federalism for Dummies: Navigating the Supreme Court's power grab

Republicans on the Trump-packed Supreme Court are on a tear. Taking judicial activism to a level never seen before, this week they stripped the executive branch of power to regulate public safety, the environment and healthcare; determined that J6 rioters obstructing Congress’ counting of votes wasn’t really obstruction; and ruled that bribing an elected official isn’t bribery if you wait a few days and call it a gratuity.

After 25 years in federal litigation, I’m gobsmacked, so I turned to the “for Dummies” book series to teach an old dog new tricks without making the old dog feel stupid. The series answers all life’s deep questions, from how to stop killing houseplants to Astrophysics for Dummies, though I’ll admit “Get out of debt for dummies” wasn’t much help. (Turns out one must spend less than one earns; if they had written that on the cover I’d be $18.79 closer to my financial goals.)

So, naturally, when confronted with this week’s onslaught from the court, I scoured “Critical thinking for dummies” trying to figure out how “federalism” means one thing when the court talks about bribery or how to grab power for itself, but something else entirely when it talks about guns or abortion.

Federalism’s new definition of corruption

In Snyder v. United States, 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 on the bench got out their Xacto knives, the federal anti-corruption statute, 18 U.S. Code § 666, made it “a crime for most state and local officials to corruptly solicit, accept, or agree to accept anything of value intending to be influenced or rewarded in connection with” any business or transaction worth $5,000 or more. James Snyder, the 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 lost his appeal in the 7^thCircuit.

Reversing, and writing for the 6-3 Republican majority, Justice Kavanaugh said 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 gifts he is allowed to accept. (‘Just Say No’ for Dummies, anyone?)

Justice Jackson’s snarky and spot-on dissent called Kavanaugh’s “absurd and atextual reading of the statute” an interpretation that “only today’s Court could love.” Ignoring 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, Clarence Thomas contrived a whole new “historical antecedent” framework under Bruen. Referencing federalism four times, NRA darlings on the bench struck down New York’s conceal carry law 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 on domestic violence and guns forced conservative justices to see their absurd handiwork in Bruen up close. In Rahimi, Texas’ bright 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.

Rahimi, which cited the Federalist papers nine times, exposed 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 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 kick in the stomach from Trump 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 the pesky strictures of Equal Protection?

If state legislatures truly wanted to end abortion, wouldn’t mandatory vasectomies make more sense than state-forced birth? Vasectomies are risk-free; the maternal mortality rate is 32.9 deaths per 100,000 births. Vasectomies cost around $1000; giving birth averages $19,000, and more than $300,000 to raise a child. Ninety percent of vasectomies are reversible; live birth permanently changes a woman’s body. Most importantly, for legal review, vasectomies, unlike forced birth laws, are nearly 100% effective.

If the vasectomy question ever found its way to Alito, you can bet he would tap the 14^th Amendment’s guarantee of Equal Protection for men, even as he callously denied it for women. States can now force women into nine months of medical risk, confinement and excruciating childbirth pain that too often leads to death, but this Court would buck federalism and find state-forced vasectomies “mere pretext” for “invidious discrimination” against men.

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