Constitutional Law Commons^™

National Federation Of Independent Business V. Sebelius, 567 U.S. 519 (2012), Elizabeth Weeks, Mary Ann Chirba, Alice A. Noble

Scholarly Works

In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care …

A Response To Beyond Separation: Professor Copeland’S Ambitious Proposal For “Integrative” Federalism, Elizabeth Weeks

Scholarly Works

No abstract provided.

Affordable Care Act Litigation: The Standing Paradox, Elizabeth Weeks Leonard

Scholarly Works

The Patient Protection and Affordable Care Act (ACA) litigation presents a standing paradox. In the current posture, it appears that states lack standing to challenge the federal law on behalf of individuals, while individuals possess standing to challenge the federal law on behalf of states. This Article contends that there is no principled reason for this asymmetry and argues that standing doctrine should apply as liberally to states as individuals, assuming states allege the constitutional minimum requirements for standing and especially where the legal challenge turns on allocation of power between the federal government and states. The Article proceeds by …

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

Scholarly Works

No abstract provided.

Taking History Seriously: Reflections On A Critique Of Amar’S Treatment Of The Ninth Amendment In His Work On The Bill Of Rights, Thomas B. Mcaffee

Scholarly Works

Dean William Treanor critiques constitutional textualism, contending that it pays too much attention to the words, grammar, and placement of clauses in the Constitution, and too little to the history leading to the adoption of the interpreted language. An important illustration is Professor Amar's treatment of the Ninth Amendment in his well-known book on the Bill of Rights. This treatment shares the perspective that history frequently sheds light on the meaning of constitutional text, but contends that the history yielding the Ninth Amendment demonstrates that it was drafted to secure the rights retained by the granting of limited federal powers—and …

Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer

Scholarly Works

This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …

Discussion: A Focus On Federalism, Jeffrey B. Morris

Scholarly Works

No abstract provided.

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 …

The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck

Scholarly Works

Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a …

Federalism In Environmental Protection, Peter A. Appel

Scholarly Works

In the last seven years, the Supreme Court has decided several cases that potentially alter the balance between the states and the federal government. Although these decisions have generated much controversy, in some ways they only address some important federalism questions at the periphery. Professor Appel examines four areas of environmental law that the recent decisions either only inform or do not address at all: cleanup of hazardous waste sites; the effect of state enforcement actions on citizen enforcement brought under federal environmental laws; the effect of state enforcement actions on federal enforcement actions; and the management of federal lands …

Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz

Scholarly Works

No abstract provided.

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

Scholarly Works

The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.

The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is …

Ulysses At The Mast: Democracy, Federalism, And The Sirens' Song Of The Seventeenth Amendment, Jay S. Bybee

Scholarly Works

One of the most remarkable aspects of the Constitution is the manner in which it marbles together people and states. By ratifying the Constitution, the states agreed to cede a portion of their sovereignty to a new entity, the ‘United States.’ The states granted to Congress their collective powers to impose taxes, incur debt, issue coin and securities, regulate commerce among the states and with other sovereigns, and control the engines of war. The states further relinquished their rights to act as independent sovereigns and enter into treaties with foreign countries, coin money, grant titles of nobility, and wage war. …

Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing …

Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells

Scholarly Works

Suppose a federal district court faces a challenge to state action that presents an unsettled issue of state law, a federal constitutional issue, and a plaintiff who will be irreparably harmed if the state is not immediately enjoined. May the court abstain from a decision on the merits, remand the case to the state courts for resolution of the state law issue, and yet grant a preliminary injunction against the challenged state action? Does it follow from the paucity of reported opinions coupling such interim relief with abstention that such a procedure is inconsistent with the policies underlying the abstention …

State Taxation And The Supreme Court: Toward A More Unified Approach To Constitutional Adjudication?, Walter Hellerstein

Scholarly Works

The Supreme Court's decisions delineating the constitutional limitations on state tax power have often defied rational analysis. The Court read the commerce clause as forbidding a state tax on the privilege of doing interstate business but not on the privilege of doing interstate business in corporate form. It construed the import-export clause as prohibiting a state tax on bales of imported hemp awaiting use in manufacturing but not on piles of imported ore and plywood awaiting such use. It interpreted the supremacy clause as barring a state tax upon the sale of goods to one government contractor but not to …

A Commerce Power Seesaw: Balancing National League Of Cities, J. Ralph Beaird, C. Ronald Ellington

Scholarly Works

This Article seeks to explore the developing principles of state sovereignty limitations on Congress’ exercise of its granted powers and the potential conflicts in reconciling the enforcement of strong federal policy interests with the allowance to the states of primary control over certain governmental functions. Since both tenth and eleventh amendment questions were raised by the application of the Fair Labor Standards Act’s ever broadening coverage to state employees and its grant of federal court jurisdiction over enforcement suits, and since the Act precipitated the League of Cities decision, the Court’s treatment of the Act will serve as the primary …