Law Commons^™

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …

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 …

Constitutional Federalism, Individual Liberty, And The Securities Litigation Uniform Standards Act Of 1998, Adam C. Pritchard

Articles

This Article proceeds in four parts. Part I provides background on the historical development of constitutional federalism, the Supreme Court's decisions in this area, and the apparent demise of constitutional limits on federal power. Part II then reviews the Court's revival of constitutional federalism over the last decade. Based on this review, I argue that the Supreme Court's current federalism doctrine can be understood as a "constrained libertarianism" that attempts to use constitutional structure as a check on government interference with individual liberty. In this model, states are respected in our constitutional system because of the counterbalance that they provide …

Staking Out The Border Between Comandeering And Conditional Preemption: Is The Driver's Privacy Protection Act Constitutional Under The Tenth Amendment?, Rachel F. Preiser

Michigan Law Review

Congress passed the Driver's Privacy Protection Act of 1994 ("DPPA") in response to state sales of personal information contained in motor vehicle records to individuals and to direct marketing companies who use it to identify select groups of prospective customers for particular products. Thirty-four states sell their department of motor vehicles ("DMV") records to individual citizens and to direct marketers, essentially allowing their unregulated distribution to any party seeking them. This practice of selling and distributing personal information has serious implications for the privacy and safety of individual citizens. In considering the DPP A, Congress dwelt in particular on the …

The Treaty Power And American Federalism, Curtis A. Bradley

Michigan Law Review

For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …

How To Think About The Federal Commerce Power And Incidentally Rewrite United States V. Lopez, Donald H. Regan

Articles

Almost sixty years after the "revolution" of 1937, we still do not have an adequate theory of the commerce power. The Court was right to abandon the theory of dual federalism epitomized by Carter v. Carter Coal Co.;' and it has got the right results in the major cases decided since then. But our post-1937 theory, whether before or after Lopez, is a mess. On the one hand, we have a collection of doctrinal rules that, if we take them seriously, allow Congress to do anything it wants under the commerce power. On the other hand, we continue to pay …

Environmental Regulation And The Constitution, James E. Krier

Book Chapters

Indirectly, at least, the Constitution provides the federal government with power to regulate on behalf of environ-mental quality, but it also sets limits on the power. It sets limits, likewise, on the regulatory power of the states. What it does not do, at present, is grant the ‘‘constitutional right to a clean environment’’ so avidly sought in the hey-day of environmental concern, the decade of the 1970s. Thus, the one unique aspect of the general topic consid-ered here has no doctrinal standing; the remaining aspects are matters of doctrine, but they are not unique to envi-ronmental regulation. It is quite …

The Expansion Of Federal Legislative Authority, Terrance Sandalow

Book Chapters

During the 190 years since the Constitution's adoption, the legislative authority of the Congress has greatly expanded. In the beginning, Congress's powers were closely circumscribed, but over the years the boundaries by which they were initially confined have been almost entirely obliterated. Congress has ceased to be merely the legislative authority of a federal government; it has for all practical purposes acquired the legislative authority of a unitary nation. Especially in the economic sphere, it is only a small exaggeration to say that Congress now possesses plenary authority.

Of course, Congress need not-and, in fact, does not--exercise all the power …

State Control Of Radiation Hazards: An Intergovernmental Relations Problem, Samuel D. Estep, Martin Adelman

Michigan Law Review

The purpose of this article is to set forth the nature of the intergovernmental problem. This involves an analysis of the extent and limitations of federal power, a determination of congressional intent on the issue of federal pre-emption, and an appraisal of the steps now being taken by the Atomic Energy Commission to turn over part of the radiation safety regulatory program to the states.

"Congress Shall Make No Law…":Ii, O. John Rogge

Michigan Law Review

The framers of the federal bill of rights by the First and Tenth Amendments sought to deny Congress power over utterances unless they were connected with criminal conduct other than advocacy. Any power over such utterances was to reside in the states. However, the Supreme Court departed from the framers' intent.

One of the factors in this development was the emergence of an undefined federal police power. This occurred largely under the commerce and postal clauses. It began over a century ago. As early as 1838 Congress passed a law requiring the installation of safety devices upon steam vessels. Beginning …

"Congress Shall Make No Law..."*, O. John Rogge

Michigan Law Review

It is the position of the writer that, at least so far as Congress is concerned, speech is as free as thought, and that unless and until speech becomes a part of a course of conduct which Congress can restrain or regulate no federal legislative power over it exists. State power, despite the Fourteenth Amendment, may be somewhat more extensive. Certainly the framers of the First Amendment intended that it should be. This article will deal with federal power over speech.

Federal Control Of Health And Safety Standards In Peacetime Private Atomic Energy Activities, Samuel D. Estep

Michigan Law Review

This article is directed to the question of the power of Congress to provide for such regulation of those who handle radioactive materials in private industry and not to the policy question of whether Congress ought to attempt such regulation.

Constitutional Law-Power Of State To Discriminate Against Federal Government By Testamentary Transfer Statute, Gordon W. Hueschen

Michigan Law Review

Decedent, domiciled in California, made a testamentary gift to the United States. By an interpretation of the state probate code, the California Supreme Court held the gift invalid and directed distribution to decedent's heirs. The United States asserted unconstitutional interference with the federal government's power to receive gifts. On appeal to the United States Supreme Court, held, affirmed. The California Probate Code did not violate the supremacy clause of the Constitution, and no unconstitutional discrimination was effected against the federal government thereby, even though the statute allows testamentary gifts by state domiciliaries to the state and prohibits testamentary gifts …

Freedom Of The Press And Of The Mails, Eberhard P. Deutsch

Michigan Law Review

It should be unnecessary to amend the Federal Constitution to accommodate the facilities of government to the needs of society, as those needs develop with the social and scientific advance of civilization. But the trend of legislative effort to reach beyond constitutional limits to satisfy fleeting economic or political expediencies, without regard for the vital distinction between sound and substance, and of courts to seek justification for such excursions, under the benefit of constitutional doubt due "solemn expressions of legislative will," may lead to highly dangerous situations. As this trend is permitted to reach extremes, the erasure of the well-defined …

Child Labor Law Case, Commerce Power Of Congress And Reserved Powers Of The States, Henry M. Bates

Articles

The decision in the Child Labor Law case, Hammer v. Dagenhart, - U. S. -, 62 L. ed. -, decided June 3, 1918, would have caused much less surprise twenty-five years ago than it did when announced last June, for it is based upon two constitutional provisions concerning which the much wider and more varied experience of the last quarter century had developed theories, better defined and sounder than those of the earlier period. Those two provisions are the Tenth Amendment regarding the powers reserved to the States and the Commerce Clause. There has been an astonishing amount of faulty …