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Full-Text Articles in Law
Recovering The Lost General Welfare Clause, David S. Schwartz
Recovering The Lost General Welfare Clause, David S. Schwartz
William & Mary Law Review
The General Welfare Clause of Article I, Section 8, Clause 1 of the Constitution enumerates a power to “provide for the common defense and general welfare.” A literal interpretation of this clause (“the general welfare interpretation”) would authorize Congress to legislate for any national purpose, and therefore to address all national problems— for example, the COVID-19 pandemic—in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called “Spending Power,” a power only to spend, but not to regulate, for …
Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith
Congress's Treaty-Implementing Power In Historical Practice, Jean Galbraith
William & Mary Law Review
Historical practice strongly influences constitutional interpretation in foreign relations law, including most questions relating to the treaty power. Yet it is strikingly absent from the present debate over whether Congress can pass legislation implementing U.S. treaties under the Necessary and Proper Clause. Drawing on previously unexplored sources, this Article considers the historical roots of Congress’s power to implement U.S. treaties between the Founding Era and the seminal case of Missouri v. Holland in 1920. It shows that time after time, members of Congress understood the Necessary and Proper Clause to provide a constitutional basis for a congressional power to implement …
A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg
A General Theory Of Governance: Due Process And Lawmaking Power, Louise Weinberg
William & Mary Law Review
This Article proposes a general theory describing the nature and sources of law in American courts. Erie Railroad Co. v. Tompkins is rejected for this purpose. Better, more general theory is available, flowing from the Due Process Clauses. At its narrowest, the proposed theory is consonant with Erie but generalizes it, embracing federal as well as state law and statutory as well as decisional law in both state and federal courts. More broadly, beyond this unification of systemic thinking, the interest-analytic methodology characteristic of due process extends to a range of substantive constitutional problems. These include problems concerning both the …
Federalism Under Obama, Gillian E. Metzger
Federalism Under Obama, Gillian E. Metzger
William & Mary Law Review
No abstract provided.
Legislating Preemption, Jamelle C. Sharpe
Legislating Preemption, Jamelle C. Sharpe
William & Mary Law Review
Federal preemption is perhaps the most important public law issueof the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the statescontrol regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority insetting federal preemption policy, but, for numerous political and practical reasons, cannot be solely responsible for its implementation.Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemptionpolicy-making business, it has elided a …
How To Survive A Terrorist Attack: The Constitution's Majority Quorum Requirement And The Continuity Of Congress, John Bryan Williams
How To Survive A Terrorist Attack: The Constitution's Majority Quorum Requirement And The Continuity Of Congress, John Bryan Williams
William & Mary Law Review
Since their realization that United Airlines Flight 93 was headed toward the U.S. Capitol on the morning of September 11, 2001, legislators and policymakers have been debating how the legislative branch would continue functioning in the aftermath of a terrorist attack that killed or incapacitated large numbers of sehators or representatives. This Article reviews the current House and Senate "Continuity of Congress"plans, and argues they are both practically and constitutionally inadequate. Focusing particularly on the Constitution's majority quorum requirement in Article I, Section Five, Clause One, this Article argues that a House or Senate operating in accordance with the current …
Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro
Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro
William & Mary Law Review
No abstract provided.
Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi
William & Mary Law Review
Frequently, state-wide executive agencies and localities attempt to implement federally inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made.
This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally inspired programs. To the extent the predominant ways of resolving the …
Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens
Federalism And Foreign Affairs: Congress's Power To "Define And Punish...Offenses Against The Law Of Nations", Beth Stephens
William & Mary Law Review
No abstract provided.
Treading On Sacred Ground: Congress's Power To Subject White House Advisers To Senate Confirmation, Douglas S. Onley
Treading On Sacred Ground: Congress's Power To Subject White House Advisers To Senate Confirmation, Douglas S. Onley
William & Mary Law Review
No abstract provided.
The Case Against Fifra Preemption: Reconciling Cipollone's Preemption Approach With Both The Supremacy Clause And Basic Notions Of Federalism, Stephen D. Otero
The Case Against Fifra Preemption: Reconciling Cipollone's Preemption Approach With Both The Supremacy Clause And Basic Notions Of Federalism, Stephen D. Otero
William & Mary Law Review
No abstract provided.
Looking Down From The Hill: Factors Determining The Success Of Congressional Efforts To Reverse Supreme Court Interpretations Of The Constitution, Mark E. Herrmann
Looking Down From The Hill: Factors Determining The Success Of Congressional Efforts To Reverse Supreme Court Interpretations Of The Constitution, Mark E. Herrmann
William & Mary Law Review
No abstract provided.
The Functions, Roles, And Duties Of The Senate In The Supreme Court Appointment Process, William G. Ross
The Functions, Roles, And Duties Of The Senate In The Supreme Court Appointment Process, William G. Ross
William & Mary Law Review
No abstract provided.
Congress, The Constitution, And The Appellate Jurisdiction Of The Supreme Court: The Letter And The Spirit Of The Exceptions Clause, Ralph A. Rossum
Congress, The Constitution, And The Appellate Jurisdiction Of The Supreme Court: The Letter And The Spirit Of The Exceptions Clause, Ralph A. Rossum
William & Mary Law Review
No abstract provided.
State Constitutional Law Processes, Robert F. Williams
State Constitutional Law Processes, Robert F. Williams
William & Mary Law Review
No abstract provided.
Legislative And Executive Veto Of Rules Of Administrative Agencies: Models And Alternatives, L. Harold Levinson
Legislative And Executive Veto Of Rules Of Administrative Agencies: Models And Alternatives, L. Harold Levinson
William & Mary Law Review
No abstract provided.
The Constitutionality Of The Legislative Veto, Douglas B. Habig
The Constitutionality Of The Legislative Veto, Douglas B. Habig
William & Mary Law Review
No abstract provided.
Kneeling To The Sec Rules: The Virginia Takeover Act And Sec Tender Offer Rule 14d-2(B), R. Grant Decker Jr.
Kneeling To The Sec Rules: The Virginia Takeover Act And Sec Tender Offer Rule 14d-2(B), R. Grant Decker Jr.
William & Mary Law Review
No abstract provided.