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Some Reflections On Fundamental Questions About The Original Understanding Of The Establishment Clause, Kent Greenawalt
Some Reflections On Fundamental Questions About The Original Understanding Of The Establishment Clause, Kent Greenawalt
Faculty Scholarship
This chapter begins with an analysis of Everson v. Board of Education, where it argues that the although the original intent of the Establishment Clause and the Fourteenth Amendment should be given some weight, the original intent should not be determinative. The chapter rejects the argument that the Establishment Clause was exclusively designed to prevent the federal government from interfering with state establishments. While federalism concerns may have been one such purpose, the Establishment Clause also necessarily prevented the federal government from establishing religion in the District of Columbia, on federal territories, and on federal property — including embassies …
Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen
Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen
Faculty Scholarship
States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress's faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with …