Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
The Spending Power And Environmental Law After Sebelius, Erin Ryan
The Spending Power And Environmental Law After Sebelius, Erin Ryan
University of Colorado Law Review
In National Federation of Independent Business v. Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending-power grounds, rounding out the "New Federalism" limits on federal power first initiated by the Rehnquist Court in the 1990s. The new Sebelius doctrine constrains the federal spending power in contexts involving changes to ongoing intergovernmental partnerships with very large federal grants. However, the decision gives little direction for evaluating …
Climate Change, Forests, And Federalism: Seeing The Treaty For The Trees, Blake Hudson
Climate Change, Forests, And Federalism: Seeing The Treaty For The Trees, Blake Hudson
University of Colorado Law Review
Despite numerous attempts over the past two decadesincluding, most recently, the Copenhagen climate discussions in late 2009-international forest and climate negotiations have failed to produce a legally binding treaty addressing global forest management activities. This failure is due in large part to a lack of U.S. leadership. Though U.S. participation in ongoing forest and climate negotiations is essential, scholars have not fully explored the potential limiting effects of federalism on the United States' treaty power in the area of forest management. Such an exploration is necessary given the debate among constitutional law scholars regarding the scope of the treaty power, …
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
University of Colorado Law Review
This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmiresexemplified by the radioactive waste capacity problem at the heart of the New York litigation-by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress …