Friday was a legal marathon at Willamette University! The Law Review students organize a symposium each year, focused around a particular theme. This year was all about Federalism in the era of Trump, and particularly how Oregon topics can illuminate federalism. Naturally, there was a panel discussion on marijuana law, plus sessions on immigration, intentional partisan gerrymandering, the environmental administrative state, worker misclassification and tax law, the tax court system, and a keynote address by Ilya Somin on why progressives should care about federalism.
The Billy Williams AUSA summit on marijuana was convening as the first session, on marijuana law, was beginning. Notably absent were most Oregon cannabis attorneys (presumably at the summit!). I asked about the legal history and caselaw that underpins Oregon’s decision to exclude cannabis from right-to-farm laws but include it as a farm product. Didn’t get much answer.
The keynote speaker, Ilya Somin, is a law professor at George Mason University and a writer and speaker in support of libertarian causes. He argued that progressives have a lot to gain from promoting federalism, especially in the areas of federal commandeering, cannabis law, and asset forfeiture. What I wanted to ask him: “what examples would you provide to a conservative audience, to encourage them to support federalism?” I suspect that his audience at Willamette would be horrified and disgusted at the causes for which federalism might be invoked in conservative circles. Federalism is most enticing when “your” political party is not in a position of power in Washington D.C. Perhaps most disturbing to me about federalism is that, while it is a political perspective as old as our Constitution, federalism is most strongly invoked with reference to “states rights” and segregation and white nationalism and massive resistance and slavery. This is also the root of modern libertarianism. Yikes.
I just happen to be in the middle of reading “Democracy in Chains, the deep history of the radical right’s stealth plan for America” by contemporary historian Nancy MacLean (Penguin Books, 2017). Her book (which I learned yesterday is called popular scholarship) illuminates the origins of Charles and David Koch’s libertarian activism in segregated and post-segregation Virginia. I’ll never see libertarian philosophy the same again.
Paul Diller, Willamette Law professor of governance and public policy, presented some of his research on intentional partisan gerrymandering. One thing that stuck with me: “Gerrymandering does not lead to polarization of politics, but it does capitalize on pre-existing polarization.” And Diller also provided examples of how gerrymandering can actually be used to provide public benefits, including promoting diversity of opinions or diversity of experiences. One result of intentional partisan gerrymandering, Diller explains, is pre-emption; that is, state legislatures pre-empt the passage of laws at the county or municipal level that the gerrymander-benefited political party does not like. Legislatures pre-empt by passing laws that expressly forbid certain law-making at the city level, by punishing cities for passing certain laws, by denying funds to cities that attempt to pass certain laws, by threatening to remove local officials, and by allowing other cities to sue the offending city. Diller also submitted an amicus curiae brief to the Supreme Court in Gill v Whitford, the intentional partisan gerrymandering case that was argued in the fall.