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Notes -
The Death of Trust in Bipartisan Lawmaking
The Pregnant Workers Fairness Act is a 2023 law, driven by nearly a decade of cross-party and cross-tribe interests, best summarized by the intro to this 2018 Atlantic piece:
While a 1978 amendment to Title VII established pregnancy as a protected characteristic, the PWFA's congressional support saw it as too limited in scope and in what accommodations it could require businesses to hold.
Another point, however, dropped in mid-April:
This isn't necessarily new, or a surprise: some courts had already held that the 1978 Title VII amendment protected abortion as a pregnancy-related medical condition, albeit with the more restricted scope. There are good pragmatic or philosophical arguments in favor or against, either in regards to abortion specifically or as a law in general, and some !!fun!! questions about a possible that the EEOC's rule-making treats as purely theoretical. There are some, if not exactly strong, arguments that the text of the law requires it.
Several Republican congresscritters who voted for and cosponsored the bill promptly blasted this interpretation, swearing that they were sure and assured it wouldn't happen. Social conservatives, on the other hand, prompted sang I told you so.
Mattes and his organization do still exist, but haven't commented on the new regulation. They're not, it can be fairly readily assumed, in a huge hurry to partner with the ACLU on statute-writing or sponsor-wrangling any time soon.
Okay, well that's not a policy I actually care about, so it's at least kinda funny, and .
FFLs and How To Get Your Dog Shot By The ATF
The 2022 Bipartisan Safer Communities Act had many components, but one of many that gun rights advocates pointed out at length as a matter of concern, even well before the law's language was fully concrete, was the redefinition of gun dealers and engaging in the business of firearms sales, from "principal objective of livelihood and profit" to "predominantly earn a profit". The ATF released its final rule on this new statutory definition in early April, shortly after shooting someone in the head while all their agents forgot their cameras at home, explicitly citing the BSCA's new language as cause.
Three guesses on how that went, and the first two don't count:
The only thing that the new rule explicitly does not consider to be "predominantly earn[ing] a profit" is if an individual is liquidating all or part of their owned firearms, without (ever?) purchasing new ones, and I wouldn't bet my pet's life on it. In some ways, it's kinda impressive: the final rule, as opposed to the original proposal, reacted to gunnie concerns about the underspecificity of one resale exception by explicitly removing firearms owned for personal protection from it. In some cases, it breaks from the text of the statute. Halbrook highlights a statutory exception that the ATF refines down to covers repair and customization.
I've written before about the same act smothering archery and hunter training programs at schools, and while this was eventually (and to my surprise) amended, that passed late enough to leave programs screwed over for last school year. We'll see how many schools are willing or able to bring them back.
All around me are familiar faces, Worn out places, worn out FACEs
The Freedom of Access to Clinic Entrances Act is a 1994 statute from the old days before backronyms were popularized outside of the military, and consisted of three major prohibitions:
It was considered the height of bipartisan compromise at a difficult time (and Bill Clinton's statescraft, in contrast to the then-expensive Assault Weapons Ban), and like many laws from that era, it reflects a draconian view of punishment. While a first nonviolent offense can 'only' result in a maximum of six months imprisonment and a 10k USD fine, these numbers scale rapidly for repeat offenses, and can be rapidly stacked, even in marginal cases, with other charges to boost the scope of a trial and the possible punishment.
Uh. Except you might notice a pattern in what direction both the successful and failed cases go, and what prongs of the FACE Act they cover. It's not that the feds never prosecute someone for clear violations of this law; they just do it by using an entirely different law that predated and does not scale, and accept plea bargains for the most minimal punishments. That disparity has been around for a while, even if it's only become more obvious with Jane's Revenge floating around.
It does not, as a matter of law, matter whether the FACEs is ever enforced against a specific political viewpoint. And from the view of the 'don't break the laws, fucko' or 'don't block access to public spaces' caucus, I've got little sympathy for protestors getting burned when they signed up for the frying pan. But if you sent a message back in time to the 1994 GOP and told them they were just repeating the 1988 18 USC 247, I doubt they'd have trumpeted it.
Joe Wilson and the Affordable Care Act
There's a number of famous controversies during the run-up to the passage of the Affordable Care Act, along with some lesser-known ones. The extent trans-related healthcare would be covered and what expectations that invoked was a sleeper, while the question of "encouraged end-of-life" care rather famously got above the fold at length.
Joe Wilson is best-remembered, to the extent he's remembered at all, for one of the better-known ones. He shouted out "You lie" during the middle of a joint session of congress where then-President Obama disavowed that "our reform efforts would insure illegal immigrants", a matter Republicans feared would be thrown.
To be fair to President Obama, he's (officially) been out of office for the better part of a decade. To be less fair to Biden, there's no statute changed about any of this in that whole timeframe, and Obama was using the future tense. Whatever Obama thought he was proposing, this is what his proposal got, and it's not like he's complaining.
Wilson received a reprimand for his outburst. There'd be some irony in him living long enough to crow about it, though he hasn't done so yet. And even if he did, being right is cold comfort for anyone other than the politicians.
One of These Things Is Not Like The Others
The Affordable Care Act, unlike the Bipartisan Safer Communities Act or Pregnant Workers Fairness Act or Freedom of Access to Clinic Entrances Act, was more the result of long negotiation rather than long negotiation and compromise between the parties. There are no Republican cosponsors or even congressional votes for the law to be betrayed, because there were no Republican congressional votes for the ACA at all; at most, there were some (long-booted) Blue Dogs.
Quite a large number of moderates, of one stripe or another, drew that as a particular failure. They could, we were told, have gotten more serious concessions; they could, we were told, have achieved their own separate goals. How much they were moderates or 'moderates' often said how much 'they' in the previous passages stood for the GOP or for that particular person's particular goals. During the second half of the Obama years, many of the particular goals side painted the Republicans as the Party of No; after, this obstinate unwillingness to give up a slice of the cake was drawn as both cause and effect of various Republican maladies, from poll numbers among young professionals to failure to integrate into the administrative class to the price of tea in China.
The PWFA and BSCA rulemakings and FACEs prosecutions come as the punchlines to those particularly jokes. No one's come away from any statute feeling the GOP has a better finger on the interests of the public, or was able to represent its people's interests better than the What's The Matter With Kansas asshole. Perhaps these laws are all cherry-picked, and every other major bipartisan statute had everyone walk away smiling, or the GOP betrayed the Democratic Party. Nor, given the speed that even matters as simple as dictionaries have turned to political ends, is there any way to promise that the next time would be different, or that even laws and statutes that conservatives badly want would be resistant. Indeed, the longest delay was the case where they compromised in no amount at all!
You still don't get that many tries to break trust, and it's expensive to rebuild.
I'm reading the general lesson of this is that:
Republicans (and congressmen in general) should assume that government agencies will not listen to their intent and do everything they can to interpret every law passed in as left-conforming a way possible.
Accordingly, minimize dependence on government agencies for one's legislative agenda, and prefer to shrink power when possible.
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I don't know that any of these are great examples. Let's approach them individually:
Pregnant Worker's Fairness Act
It's a bit academic, but it should be noted that the EEOC doesn't actually have Title VII rulemaking authority. The "rules" they promulgate are merely interpretive documents that inform businesses on how to comply and inform courts on the agency's interpretation. The courts themselves are only bound to follow EEOC guidance if it's "reasonable". Now, there are decisions out there that say that courts can't just wave these away and should give the agency deference, so there's a pretty big hurdle to overcome if you want to go against this guidance, and it gets pretty complicated here, but suffice it to say that courts aren't bound by these rules the same as they would if they were promulgated by an agency that actually had rulemaking authority. It should also be noted that the EEOC still has to follow the APA when it comes to procedural matters in promulgation (like notice and comment), so this lack of authority doesn't exactly make it easy for them to run wild.
As far as the actual rule is concerned, it's hard to say from a Republican perspective what the EEOC should have actually done. Saying outright that the law didn't apply to abortion would have created a situation where the EEOC guidance was directly at-odds with any reasonable canon of legislative interpretation; I don't think any textualist could argue with a straight face that abortions aren't pregnancy-related. Saying nothing about the matter isn't an option either. Since they're still bound by the APA, they have to address the comments they received, and they received plenty of comments about abortion. And even if they could have just omitted the abortion section, all that really does is kick the can down the road for when a court actually has to decide the matter, and it's unlikely that any but the staunchest anti-abortion judge would rule that abortions aren't related to pregnancy.
But that's all irrelevant because it's unlikely that this rule (or lack thereof) would ever result in litigation. The rules pretty clearly state that the effect of this guidance is that an employer is required to give a woman leave (paid or unpaid) to receive an abortion. While this seems like raw culture war bait, the reality is that, excepting for circumstances where someone is trying to rub it in an employer's face, no one is specifically asking for time off to get an abortion. I've personally never had an employer ask about the nature of any medical procedure I've taken time off to get, or had them ask me which doctor I was going to, and if a doctor's excuse is required, I doubt many employers are going to do internet research to determine if this is a doctor who exclusively performs abortions. Employers generally aren't allowed to ask employees about medical conditions that aren't work-related, except to verify leave, although as long as a doctor confirms that the absence is for a medical reason they can't really inquire further. And I doubt they would, since hunting for people who are getting abortions means, practically speaking, that they'd have to investigate every employee's medical leave, which I doubt any really want to do. There may be some unlikely confluence of factors where this could become a real issue, but I doubt it. Most women seeking abortions aren't going to tell their employers that they need time off specifically to get one.
If Republicans felt that strongly of this, they would have sought to get specific language into the bill. They didn't, and complaining about this is just them getting hoisted by their own petard given the electoral consequences involved.
FFLs When the entire point of specific statutory language is to expand a definition, you can't complain too loudly when that definition gets expanded. If you had sole rulemaking authority with regards to this, how would you expand the definition to conform with the new law without simply restating the old definition? I'm sure you can think of a dozen ways that this could be done, but that's beside the point. The point is that someone has to come up with these definitions and they have to conform with the statutory language without being overbroad. But that's tricky. The problem here is that there are two basic categories that are uncontroversial. One is the people who are actually running gun stores who need FFLs for legitimate business purposes. The other is people who simply have a gun they don't want anymore and want to sell it. But there's a third category of people we've talked about before who the government really doesn't like — people who want to sell guns part-time or as a hobby. You mentioned in a previous post how the ATF no longer will issue FFLs for hobbyists. You can disagree with that stance all you want, but it seems to me that Congress agrees with that and that was the specific intent behind the change in language. Now it's up to the ATF to flesh out that definition to cover the myriad circumstances in which someone might be selling guns "for profit". And that's hard! The problem as I see it doesn't stem so much from the law itself or ATF's interpretation of it but that there is a group of people for whom any further restrictions on gun sales is bad and needs to be stopped. They simply aren't arguing that the law was a good idea but ATF bungled the implementation; they're arguing that the law was a bad idea to begin with and using the ATF's interpretation as proof. But those are two separate arguments.
FACE Act It's telling that this law has only become controversial in recent years, after the Biden Administration used it aggressively in the wake of Dobbs. For the first 30 or so years of its existence, the fact that it was never used in cases of church vandalism was never an issue. At least not enough of an issue for 2 Republican presidents to invoke it in 12 years, one of whom was devoutly religious and the other of whom was devoutly into culture warring. It's also telling that the act also allows for private enforcement via a civil cause of action that few parties seem bothered to sue under. That being said, anti-abortion protestors necessarily do most of their work when the place is open and in full view of the public. Most of the church vandalism was done at night by people who actually disguised themselves. One type of crime is much easier to investigate than the other.
Of course, that doesn't really apply to the Nota case, because the perpetrator was caught in the act. But it doesn't compare to the Houck case, at least if you actually look at the procedural posture. The information in the Nota case was filed the day before the plea was entered. This itself was several months after the incident. What this suggests was that this was already a done deal by the time it was even on the court's docket; for all we know, the prosecutor could have threatened to throw the book at Nota before offering a misdemeanor charge and a sentencing recommendation as a lifeline. Houck, on the other hand, was found not guilty by a jury. For all we know he could have been offered the same deal as Nota but turned it down; I'd be surprised to say the least, if there was no deal offered at all.
You, uh, missed a spot. Or, for one without a header, whether one can stop to piss in Albany without risking a felony. And it's not like these things are the only examples -- if I hadn't hit trans stuff separately, I'd be pointing out the entire circuit where the ADA now covers gender identity disorders, despite the explicit text of the ADA excluding that by name!
By which you mean they issued a NPR, and then changed basically zip in response to significant public comment.
The statute, for whatever it matters, does not cover all pregnancy-related matters: it covers "pregnancy, childbirth, or related medical conditions." It's... actually not that hard to notice the difference between a medical procedure and a medical condition.
Maybe that difference shouldn’t on net matter, or the doctrine of constitutional avoidance should rule. There's perfectly good fairness or policy reasons that it should, and perhaps in a world where the text was about pregnancy-related anythings and conservatives had eaten the administrative agencies, I'd be making arguments that they're betrayed trust in an important compromise.
And yet we're here.
Yet rather than the answer to "It's no big deal" being "fine, then let me win" instead, we find that everyone insists it is both necessary and obvious, no matter how much they have to play with statute's language to get the job done.
Indeed, even were there some central case that were vital or some symbolic victory that should be a big deal to the progressive movement and a trivial one to conservatives, the religious freedom concerns that the EEOC itself claims never happen still can't get a "fine, then let me win". While "The Commission also received tens of thousands of comments asserting that giving certain accommodations for pregnancy, childbirth, or related medical conditions, such as providing leave for abortion, infertility treatments, or contraception, would infringe upon the employer's religious freedom", the final rule gloss over any serious management or standard of those concerns, leaving such questions open to "defenses using a case-by-case analysis" and motioning to a statutory defense that only protects religious organization's ability to hire people of that religion.
((Spoiler: there's few cases only because everyone paying attention knows defending against a suit is high-risk and staggeringly expensive, and there's absolutely no guarantee that the vague religious freedom exceptions might apply until very late in appeals, so the EEOC can get 99.9% of the impact just by noisily threatening enforcement and then shrugging that their political opponents leave the entire topic like a landmine.))
Not only could I, eighteen thousand people did, as Halbrook points out in his link, but you're right to say that, too, is besides the point. The ATF and APA do not care about the little people. But it does make this rhetorical question more than a little obnoxious.
But Congress did not write a law saying that you can not sell firearms as a hobbyist; it wrote that you needed an FFL to sell firearms to "predominantly earn a profit", and the ATF decided that included firearms sales that included a profit at all, or even if they didn't have a profit but might be motivated by the money. Congress has not even modified the statutory requirements for provisioning an FFL in decades! And I'll point again to the ATF happily ignoring the strict text of the statute whenever it decides that it knows best.
When you write that the government really doesn't like them, that's true in the sense that 'the government' means progressives, operating under a presumption that compromise means progressive interests get a large portion of what they demand, and conservative interests get fucked, and not in the fun way.
I can separately argue that the law was badly intended, but I don't think there's anything insightful to point out that people want to ban guns entirely and make being an FFL as difficult as possible and impossible for many. Yes, duh, I predicted that literally before Biden was sworn in as President, I can't pretend to be surprised today. Props to you for at least admitting that the whole point is make onerous rules that drive hobbyists and part-timers from the field, but it isn't exactly some deep cover.
No, the problem as I'm trying to highlight is that there is a group of people who claimed at length that this was -- as held in the name -- a Bipartisan compromise that would include both further restrictions and clarifications protecting gunnies, and this didn't happen at all. The statute still explicitly recognizes private sales, but the ATF doesn't actually recognize any way to clearly comply with it in this rule-making.
In many ways, they would have been better served by flipping anyone who offered claimed concessions the bird. It matters, that for many, that is increasingly clear.
It... actually was a pretty big controversy back in the 2008-2012 timeframe, as activists had begun disrupting church services, while both feds and state officials left the matter to civil litigation. The ADF actually brought suit with some limited success in that case, though both the org and the individuals were basically judgement proof.
At the same 2008-2012 timeframe, the DoJ was highlighting increased use from the pre-Obama framework where it was largely perceived as targeting bad actors on the scale of arson or bombings. If you want to rest your argument on the masterful control of the DoJ Trump demonstrated, I hope you have fun, but I'm gonna have a hard time taking it seriously.
The information that we can't see or find or read, even presuming it actually exists, does not actually do a good job of protecting trust, especially given the extent this glosses over a wide variety of other stuff in the reporting (Nota spraypainting an employee's face and threw a rock at them, and also spray-painted a police car). The lack of SWAT, I am sure, has a similarly plausible and similarly unprovable charitable explanation.
Indeed, yes, the guy who didn't destroy property or spraypaint anyone in the face could have gotten a plea bargain. Of course, Houck was found not-guilty, while Nota was caught spraypaint-handed. Interestingly, we do happen to have another example I linked where the people were actually guilty of a FACE Act violation against abortion clinics, and one of the protestors plead guilty, turned government witness, and got 10 months in prison for her plea deal.
Yes, I'm sure there's some post-hoc way that This One Is Different. There might even be ways to argue it that doesn't look hilariously biased (Davis conspired to block a hallway! something something sentencing guidelines! two counts, because Nota didn't do two illegal things at once!), though I'm not optimistic. But the readiness that people defending these disparities can discover that it is impossible to evaluate the merits or compare in any statistically meaningful way are starting to echo.
In case anyone else is put off by the volume of other links, I want to point out that this was a particularly amusing little rabbit hole to go down, despite my disinterest in most of the NixOS drama.
[Demand for codifying mandatory apologies to anyone who makes a claim of having been hurt]
[Pointing out that the validity of each claim might be an important detail]
[Doubling down, insisting that "if your mindset is already in that kind of detail" you're probably not "productive"]
[Pointing out that this kind of insult is hurtful and should deserve an apology]
[crickets chirping]
They might as well save some bytes and replace the CoC with "Who, whom?". That would also give them more time to focus on software, if somehow they retain any of the detail-oriented people you need to write decent software.
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Trust to me seems like why the immigration bill failed. If you don’t trust the other party to implement legislation in good faith and all the power rests with the executive then winning the next election is far more important.
Yeah. I think the more recent immigration bills also had to deal with the aftermath of the Gang of Eight attempt in 2013, which even contemporaneously was seen as Rubio getting punked by some embarrassingly useless compromises-in-name-only
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It's a cliche: Bipartisanship is when the stupid party and the evil party get together to do something stupid and evil.
For now, I don't think it's going to go away: large portions of the Republican leadership still believe in bipartisanship. If you imagine (simplistically) any compromise to lie between two extremes on a spectrum, that compromise will fall somewhere in the middle. But probably not the middle. One side gets more. The question is: which side gets more? But it's probably frequently at least in somebody's interest to write a policy and appeal to bipartisanship. That's half the problem solved.
Besides, there are lots of small picayune daily humdrums, about which nobody really cares, on which members have to work together anyway. Trust or no trust, it takes a very specific kind of person who can get elected to Congress and then defect on the deal. Most of those such members now make up the wing of the Republican party characterized as "MAGA" and "extreme," and it requires them to constantly sail upwind against all other incentive. Just this morning I was listening to Katherine Clark explaining on NPR how Democrats would probably vote to save Mike Johnson's speakership, because, uh, we have to get back to the serious work of "governing," not "politicking". "But what are Democrats getting out of this," the interviewer asks? Uh, well, the American People know right from wrong, and we need to act to sustain our economic recovery, and in November when abortion access is on the ballot... ... ... ... ...
I think this toy model misses and important dynamic that seems to happen somewhat regularly. Instead of policy changes that are at two ends of the spectrum, instead imagine one group that thinks the status quo is basically fine and one group that wants to make a change. Any compromise at all, literally any agreement to do something will be in the direction that the party of change prefers. The specific issue that I see this on is firearms, where there are just almost never actually any meaningful compromises that include tradeoffs, it's just one side winning and getting more of what they want while declaring it a compromise.
Of course, there are paths to tradeoffs even on these sorts of things because issues aren't necessary monofactorial and logrolling other policy preferences is also an option, but in practice, a compromise on "gun safety" is going to look an awful lot like an unmitigated win for that side of things.
The other problem is future negotiations. If a compromise between Do Nothing and X is Y, then Y becomes the status quo against which the next compromise occurs.
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There is all that. Although it seems baked into the post is the unsaid premise that the problem is the laws were crafted poorly/maliciously. But, IMHO, the problem is all the enforcement agencies have been captured by neoliberals. And so there simply is no law that they won't interpret in the manner that most suits their objectives. I mean, already with the constitution, you'd think "shall not be infringed" is clear as day. But to a neoliberal lawyer, or a judge that decides "The second amendment does not exist in my courtroom", it's all very nuanced.
So I suppose my opinion is that no law can possibly be crafted to prevent these enforcement agencies from just doing whatever they wanted to do anyways. As such, if you really want to curtail their behavior, you must abolish them.
But I'd be willing to settle for abolishing the undemocratic regime where unaccountable agencies get to make up whatever regulations they want without any oversight from congress, and seeing how things go from there first. A guy can hope.
What exactly do you mean by neoliberal?
I've never seen it used in the way you're using it.
Catch-all pejorative for political opponents is actually the standard usage.
I've usually seen it to mean something having some level of pro-free market (with, of course, a pejorative sense, and while pretending to refer to a precise group), which this didn't exactly seem like.
I'm being a little glib. As a pejorative it's tended to have pro-free market connotations, though when right-wingers adopt the term they tend to emphasize the globalist aspect of that rather than the anti-regulation/anti-public sector implication of left-wing usage. In either case, it tends to suffer from lumping together a wide range of people who may not be part of the same political coalition as each other or hold the views imputed to them.
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Oh, my apologies; I don't really mean to take a position on that. It's quite possible that even the most consequential and hidden stuff, like the coverage for gender identity stuff in the ACA, was totally well-intended to the most circumscribed bounds (though I'm not optimistic). It's possible that Obama genuine did at the time not want to fund health insurance for DACA, and there are almost certainly cases where the law was far more explicit and clearly written and reversed anyway. Halbrook's examples of ATF adventurism probably fall there, and I'm a long fan of pointing to problems like whether FOPA means you can stop to piss in Albany, or where a certain high-profile someone revised multiple statutory requirements to destroy records and not record or transfer them at a government facility to instead permit keeping them.
Similarly, one can readily imagine a world where every law was written in the most backhanded way by some evil grand vizier, yet it wouldn't matter because they were enforced by some even-handed personification of justice. We're just not in that world.
Yeah, there's definitely that.
But while that's definitely a bigger problem, and maybe even a coup-complete one, I think it's worth noting the separate issue and incentive where enacting a law or portion of a law to prevent something instead turned into ammunition to enact the desired change. And even if that's a rare matter, even if biased enforcement agencies are replaced or abolished, it's going to be something that will remain as a failure mode.
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While we're dreaming can we get omnibus bills to be banned? Also make a law where anyone in congress/the house can put anyone else present on the spot for knowing the bill's text from memory. If he doesn't know it verbatim then the bill is delayed until everyone involved( yes every single one) learns what it says.
Further make it so you can't add random bullshit to a bill in an amendment.
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Well there are other words in the amendment. Words like 'bear arms', the meaning of which is pretty clearly up for debate even if you come down on the side of a broad interpretation.
Would you call "...openly carry military weapons..." a broad interpretation of that part? From my point of view, that's about as narrow as you can get before you start chipping away at the text. A broad interpretation would exempt American citizens from nonproliferation treaties.
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The provision also needs read in connection with the militia clause of art 1
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Can you respond to his point about the judge that said it does not exist in her courtroom?
That seems to me the bigger issue.
State criminal courts don't do constitutional debates. He broke NY law. Whether that law is unconstitutional (probably yes) is outside the remit of that court.
I was pleasantly surprised that ChatGPT was able to produce real court cases where State Courts have ruled on Constitutionality:
The New York Court of Appeals struck down the state's death penalty law, citing the Eighth Amendment and the state's constitution. The court held that the death penalty statute violated constitutional protections against cruel and unusual punishment.
The California Supreme Court upheld the right to free speech under the First Amendment and California Constitution, allowing individuals to gather signatures in shopping centers despite private property rights. The U.S. Supreme Court affirmed the decision.
The Connecticut Supreme Court ruled that the state's death penalty law violated the Eighth Amendment due to its arbitrary application and evolving standards of decency.
The Pennsylvania Supreme Court addressed federal Eighth Amendment issues regarding sentencing juveniles to life without parole. The court applied the U.S. Supreme Court decision in Miller v. Alabama to ban such sentences.
The Washington Supreme Court ruled that the state's death penalty law violated both the Eighth Amendment and the state's constitution due to evidence of racial bias in its application.
Older LLMs would regularly hallucinate with this sort of question.
Edit: link updated to include follow up ChatGPT conversation, which included State courts that weren't State Supreme Courts ruling on Constitutionality:
Yes, not only do state criminal courts handle federal constitutional questions, it's actual necessary for a plaintiff or defendant to bring constitutional complaints to the trial-level court or they risk surrendering the question on appeal (with a few exceptions not relevant here).
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This is not true. Trial-level criminal courts can and do apply constitutional arguments to their cases all the time.
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So that implies... that challenging the constitutionality of the state law can still happen, but needs to be pushed through the court hierarchy to the federal courts before that can happen?
Gosh. What a system...
It's not true at all.
Could you elaborate?
To clarify a little more than supremacy, trial courts are triers of fact: did the accused do the thing the state says they did, and is that a violation of what the law says. They do not evaluate the validity of the laws.
If your belief is that the law itself is invalid then you have to make that case at the appellate courts.
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The Constitution is the supreme law of the land, both state and federally. State courts are certainly allowed to evaluate the constitutionality of state laws.
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