Pugliese v. Dillenberg

I continue to adhere to the view I took in our dissent from our court’s orders denying rehearing en banc in Douglas v. California Department of Youth Authority, 285 F.3d 1226 (2002), and Hason v. Medical Board of California, 294 F.3d 1166 (2002). In my opinion, a state cannot knowingly and voluntarily waive a right that Congress has said it does not have. When the state acted under the constraint of the federal statute, the Supreme Court decision1 holding that Congress acted unconstitutionally had not come down. In Hason, the Supreme Court granted certio-rari to review our court’s position…