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Articles 1 - 19 of 19
Full-Text Articles in Law
Section 6: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
The Judicial Safeguards Of Federalism, Neal Devins
The Judicial Safeguards Of Federalism, Neal Devins
Faculty Publications
No abstract provided.
The Majoritarian Rehnquist Court?, Neal Devins
The Majoritarian Rehnquist Court?, Neal Devins
Faculty Publications
No abstract provided.
The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Immigr. & Nat'lity L. Rev., Huyen Pham
Faculty Scholarship
After 9/11, Attorney General John Ashcroft announced that state and local authorities have "inherent authority" as sovereigns to enforce federal immigration laws. This announcement, a reversal from previous legal positions taken by DOJ, sent shockwaves through the immigrant and law enforcement communities. Previously, immigration law had been treated, both by law and in practice, as the exclusive province of the federal government.
This article considers the constitutional barriers to local enforcement. Although the fascinating interplay among immigration law, national security and anti-terrorism, and federalism has been highlighted in some of the debate up to now, the federalism-related issues go beyond …
Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock
Our Corporate Federalism And The Shape Of Corporate Law, Marcel Kahan, Edward B. Rock
All Faculty Scholarship
In the public debate sparked by the corporate scandals of the last years, Delaware has been strikingly absent. In contrast to the high profile activity of Congress, the Securities and Exchange Commission, the stock exchanges, federal prosecutors, and even state law enforcement officials, Delaware has been largely mute: no legislation; no rule-making; no criminal investigations; few headlines. In this Article, we use Delaware's relative passivity during this latest episode of corporate law-making as a starting point in the analysis of the shape of American corporate federalism and Delaware's place within it. We argue that Delaware long ago opted for what …
Toward A New Constitutional Anatomy, Victoria Nourse
Toward A New Constitutional Anatomy, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …
Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill
Overcoming The Obstacles Of Garrett: An As Applied Saving Construction For The Ada's Title Ii, S. Elizabeth Malloy, Timothy J. Cahill
Faculty Articles and Other Publications
Recent Supreme Court cases regarding Congress's abrogation authority have seriously impaired Congress's ability to demonstrate a valid exercise of its Section 5 power under the Fourteenth Amendment to subject nonconsenting states to suit for money damages in federal court. During its 2003 term, the Supreme Court has again granted certiorari to a case involving the proper scope of Congress's section 5 power, Lane v. Tennessee. Lane involves a suit for money damages under Title II of the ADA based on the alleged failure of the State of Tennessee to make its courthouses accessible. Many commentators suggest that the Supreme Court …
Rethinking The Role Of The Dormant Commerce Clause In State Tax Jurisdiction, Bradley W. Joondeph
Rethinking The Role Of The Dormant Commerce Clause In State Tax Jurisdiction, Bradley W. Joondeph
Faculty Publications
Perhaps the biggest controversy in state and local taxation today concerns the constitutional authority of the states to impose taxes on goods purchased over the Internet. Some argue that the current, bright-line rule of "physical presence" is the appropriate standard for determining a state's jurisdiction under the dormant Commerce Clause. Others contend that jurisdiction should instead be resolved on the more pragmatic basis of a firm's "economic presence" in the taxing state. Regardless, commentators seem to agree that the dormant Commerce Clause imposes jurisdictional limits on state taxation; the dispute concerns the content of those standards. This article contends that …
Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith
Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith
GW Law Faculty Publications & Other Works
Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the …
Federalism And The Federal Criminal Law, Craig M. Bradley
Federalism And The Federal Criminal Law, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
Apprendi And Federalism, Peter B. Rutledge
Apprendi And Federalism, Peter B. Rutledge
Scholarly Works
Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government — between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism.
This essay seeks to begin to fill that lacuna in the literature. Part I explains how Apprendi undermines principles of federalism, a curious tension because several of Apprendi’s strongest defenders, particularly …
Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick
Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick
All Faculty Scholarship
The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
Unitary Judicial Review, Bradford R. Clark
Unitary Judicial Review, Bradford R. Clark
GW Law Faculty Publications & Other Works
Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such …
The Theology Of The Blaine Amendments, Richard W. Garnett
The Theology Of The Blaine Amendments, Richard W. Garnett
Journal Articles
The Supreme Court affirmed, in Zelman v. Simmons-Harris, that the Constitution permits us to experiment with school-choice programs and, in particular, with programs that include religious schools. However, the constitutions of nearly forty States contain provisions - generically called Blaine Amendments - that speak more directly and, in many cases, more restrictively, than does the First Amendment to the flow of once-public funds to religious schools. This Article is a series of reflections, prompted by the Blaine Amendments, on education, citizenship, political liberalism, and religious freedom.
First, the Article considers what might be called the federalism defense of the provisions. …
Inter-American System, Diego Rodriguez-Pinzon
Inter-American System, Diego Rodriguez-Pinzon
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam
Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam
Articles
In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …
Treaties And International Regulation, Lori Fisler Damrosch
Treaties And International Regulation, Lori Fisler Damrosch
Faculty Scholarship
The authority of Missouri v. Holland is in no way impaired by developments of the last decade. While Justice Holmes rejected the view that "invisible radiation" from the Tenth Amendment could restrict the treaty power, his approach accepts that a treaty cannot violate "prohibitory words" in the Constitution. Some prohibitory words explicitly protect the interests of the states as against the national government. For example, the framers clearly meant the prohibition in Article I, section 9 on export taxes to bar one form of potential federal taxation that the Southern states found worrisome. In the face of this specific prohibition, …
Getting Spending: How To Replace Clear Statement Rules With Clear Thinking About Conditional Grants Of Federal Funds, Brian Galle
Getting Spending: How To Replace Clear Statement Rules With Clear Thinking About Conditional Grants Of Federal Funds, Brian Galle
Georgetown Law Faculty Publications and Other Works
How much federalism is too much? The answer, of course, depends on whom you ask. It is no surprise, then, that in both judicial and academic debates about the proper balance between national and local power, the fiercest arguments have been fought not over "how much?" (perhaps an impossible question in any event) but "who?" Thus, for each key aspect of national power-for example, the scope of the Commerce and Treaty powers, the Tenth and Fourteenth Amendments, and Congress's ability to subject states to suits for damages by private individuals -- there is an accompanying literature considering who best to …