Law Commons^™

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

Texas's "Operation Lone Star": The Supremacy Clause And Dual Federalism In Light Of Arizona V. United States, Reynaldo Ramirez, Jr

Texas A&M Law Review

The Supremacy Clause of Article Six of the United States Constitution was enacted to remedy the failures of the Articles of Confederation. Initially, the states enjoyed near-boundless state sovereignty in nearly all aspects of the first federalist government. However, in practice, the necessity of federal supremacy for conducting the business of governing obligated the states to prioritize national interests above the states’ sovereignty. To do so required revision of the Articles of Confederation. This drafting culminated in the contentious ratification of the Constitution in 1788, including the Supremacy Clause and the Tenth Amendment. That said, ratifying the Supremacy Clause and …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron

Pepperdine Law Review

The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.

Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello

Akron Law Review

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

Must Treaty Violations Be Remedied?: A Critique Of Sanchez-Llamas V. Oregon, John Quigley

Georgia Journal of International & Comparative Law

No abstract provided.

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

Bates V. Dow Agrosciences: Overcoming Federal Preemption And Giving The People A Voice , Kim Ly

Journal of the National Association of Administrative Law Judiciary

This note explores the U.S. Supreme Court's ruling in Bates v. Dow Agrosciences LLC. Part II discusses the historical background and procedural history of the case. Part III lays out the facts of the Bates case. Part IV analyzes the majority opinion given by Justice Stevens and Justice Breyer's concurring opinion, and the opinion of Justice Thomas, concurring in part and dissenting in part. Part V considers Bates's judicial, legislative and administrative impact. Part VI concludes the discussion of the Bates decision.

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Federal Governmental Power: Preemption From The October 2008 Term, Eileen Kaufman

Touro Law Review

In a stunning trifecta, the Supreme Court ruled in favor of consumers and held that federal law did not preempt state consumer claims. The three cases concerned patients injured by drugs, smokers misled by false advertising, and borrowers victimized by predatory lending practices. These cases represent the latest battle in the ongoing war between consumer advocates and business entities over whether federal laws should be interpreted to erect barriers against state consumer protection laws.

Wyeth v. Levine raised the issue of whether approval of a drug by the F.D.A. preempts a state tort claim based on failure to warn. Altria …

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson

Michigan Law Review First Impressions

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

When A Door Closes, A Window Opens: Using Preemption To Challenge State Medicaid Cutbacks, Martina Brendel

Chicago-Kent Law Review

Following the Supreme Court's 2002 decision in Gonzaga University v. Doe, several circuit courts of appeal have disallowed enforcement of key Medicaid provisions under § 1983. Notably, courts have placed no similar restrictions on the enforceability of these provisions under the Supremacy Clause. This article discusses Lankford v. Sherman and Independent Living Center v. Shewry, two recent appellate decisions in which plaintiffs succeeded in preventing Medicaid cuts under a preemption theory. It then addresses the limits of the Supremacy Clause, which applies to a narrower range of state action than § 1983. It argues that Medicaid reimbursement rates are "laws" …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Forgive Me, Founding Fathers For I Have Sinned, Carolyn A. Pytynia

Vanderbilt Journal of Transnational Law

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters …

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla Mari Mckanders

University of Arkansas at Little Rock Law Review

No abstract provided.

Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan

Michigan Law Review

This Note argues that political subdivisions should be able to seek protection from their parent states under the Supremacy Clause when alleging a conflict between state law and any federal law, be it the Constitution, treaty, or a federal statute. Part I argues that the precedential cases like Hunter and Trenton were limited to the constitutional provisions in question and therefore did not bar all suits under the Supremacy Clause. Part II shows that the issue is one of constitutional protection of political subdivisions, rather than Article III standing, which had a completely different meaning when Hunter and Trenton were …

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley

Michigan Law Review

In an article published in this Review two years ago, I described and critiqued what I called the "nationalist view" of the treaty power. Under this view, the national government has the constitutional power to enter into treaties, and thereby create binding national law by virtue of the Supremacy Clause, without regard to either subject matter or federalism limitations. This view is reflected in the writings of a number of prominent foreign affairs law scholars, as well as in the American Law Institute's Restatement (Third) of Foreign Relations Law of the United States. In my article, I argued that this …

Treaty-Making And The Nation: The Historical Foundations Of The Nationalist Conception Of The Treaty Power, David M. Golove

Michigan Law Review

Characteristic of the most enduring constitutional controversies is a clash between fundamental but ultimately irreconcilable principles. Unable to synthesize opposing precepts, we visit and revisit certain issues in an endless cycle. Each generation marches forward heedless, and sometimes only dimly aware, of how many times the battle has already been fought. Even the peace of exhaustion achieves only a temporary respite. The abiding controversy over the relationship between the treaty power of the national government and the legislative powers of the states is paradigmatic in this respect. Beginning as early as in the first debate over ratification of the Articles …

The Unconstitutionality Of State And Local Enactments In The United States Restricting Business Ties With Burma (Myanmar), David Schmahmann, James Finch

Vanderbilt Journal of Transnational Law

As a punitive measure against the military regime in Burma, state and municipal governments in the United States have adopted laws penalizing firms that conduct business in that nation. This Article analyzes the validity of these statutes and ordinances under various provisions of the U.S. Constitution.

After introducing the nature of this development and the constitutional issues raised, Part II of this Article proceeds to examine the character of the local enactments and the political backdrop which lead to their adoption. In Part II, the Authors analyze four federal constitutional issues surrounding the local legislation: implied preemption by federal legislation, …

Choice Of Law And The Forgiving Constitution, Gene R. Shreve

Indiana Law Journal

No abstract provided.

Home Relief

Touro Law Review

No abstract provided.

Preemption

Touro Law Review

No abstract provided.

The Validity Of Washington's Antitakeover Act Under The Commerce And Supremacy Clauses, Maureen B. Callahan, David J. Burman

Seattle University Law Review

This Article addresses the constitutionality of the Washington Act under the Commerce and Supremacy Clauses of the United States Constitution, and concludes that despite its extension to a limited group of foreign corporations, the Act is indeed constitutional under both clauses.

After "Life For Erie--A Reply, Peter Westen

Michigan Law Review

Erie, having "preoccupied the intellectually dominant group of academic lawyers rising to maturity during the 1940's and 1950's," is reported to be losing its "symbolic centrality" for the newest generation of legal scholars. Professor Redish's prompt and excited response to our essay proves one thing: there is at least one scholar in the country who, having come to legal maturity during the last decade, still remains capable of becoming impassioned about Erie RR v. Tompkins.

Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish

Michigan Law Review

Although the Supreme Court has not spoken in detail on the Erie doctrine since its much-discussed decision in Hanna v. Plumer in 1965, commentary on the doctrine in the literature has undergone something of a "boomlet" in the last several years. Much of it has been stimulated by the groundbreaking article by Professor John Hart Ely in 1974. The latest contribution to the area is the recent article by Professor Peter Westen and Mr. Jeffrey Lehman appearing earlier this year in this journal. Unfortunately, their article does little to advance analysis of the Erie question, and contains numerous fundamental misstatements …