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Full-Text Articles in Law

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull Jun 2022

Pandemic Governance, Yanbai Andrea Wang, Justin Weinstein-Tull

Faculty Scholarship at Penn Carey Law

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

This Article finds order in the chaos of the ...


A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron May 2022

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.


State Rejection Of Federal Law, Thomas B. Bennett Apr 2022

State Rejection Of Federal Law, Thomas B. Bennett

Notre Dame Law Review

Sometimes the United States Supreme Court speaks, and states do not follow. For example, in 2003, the Arizona Supreme Court agreed to “reject” a decision of the U.S. Supreme Court, because no “sound reasons justif[ied] following” it. Similarly, in 2006, Michigan voters approved a ballot initiative that, according to the legislature that drafted it, sought “at the very least[] to ‘freeze’ the state’s . . . law to prevent” state courts from following a ruling of the U.S. Supreme Court. Surprising though this language may be, there is nothing nefarious about these cases. Cooper v. Aaron this is not ...


Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson Apr 2022

Bringing History Home: Strategies For The International Repatriation Of Native American Cultural Property, Alec Johnson

Dickinson Law Review (2017-Present)

The theft of Native American cultural items has been ongoing since Europeans began to colonize the Americas. As a result, millions of Native American artifacts are now located outside the borders of the United States. Native American tribes have long sought international repatriation—the return of these cultural objects to their tribal owners. Unfortunately, many countries have been unsupportive of repatriation attempts and Native Americans seeking the return of their cultural items face nearly insurmountable barriers in foreign courts. The U.S. government has a moral imperative to assist Native American tribes in these repatriation efforts. The debate over repatriation ...


Enforcing Interstate Compacts In Federal Systems, Michael Osborn Mar 2022

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision ...


Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren Feb 2022

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused ...


Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans Jan 2022

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into ...


How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo Jan 2022

How Federalism Built The Fbi, Sustained Local Police, And Left Out The States, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This Article examines the endurance of police localism amid the improbable growth of the FBI in the early twentieth century when the prospect of a centralized law enforcement agency was anathema to the ideals of American democracy. It argues that doctrinal accounts of federalism do not explain these paradoxical developments. By analyzing how the Bureau made itself indispensable to local police departments rather than encroaching on their turf, the Article elucidates an operational, or collaborative, federalism that not only enlarged the Bureau’s capacity and authority but also strengthened local autonomy at the expense of the states. Collaborative federalism is ...


Article Iii And The Political Question Doctrine, Scott Dodson Nov 2021

Article Iii And The Political Question Doctrine, Scott Dodson

Northwestern University Law Review

Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such an ...


New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander Nov 2021

New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander

Northwestern University Law Review

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of ...


Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese Oct 2021

Federalism, Free Competition, And Sherman Act Preemption Of State Restraints, Alan J. Meese

Faculty Publications

The Sherman Act establishes free competition as the rule governing interstate trade. Banning private restraints cannot ensure that competitive markets allocate the nation's resources. State laws can pose identical threats to free markets, posing an obstacle to achieving Congress's goal to protect free competition.

The Sherman Act would thus override anticompetitive state laws under ordinary preemption standards. Nonetheless, the Supreme Court rejected such preemption in Parker v. Brown, creating the "state action doctrine." Parker and its progeny hold that state-imposed restraints are immune from Sherman Act preemption, even if they impose significant harm on out-of-state consumers. Parker's ...


Reconsidering Federalism And The Farm: Toward Including Local, State And Regional Voices In America's Food System, Margaret Sova Mccabe Jul 2021

Reconsidering Federalism And The Farm: Toward Including Local, State And Regional Voices In America's Food System, Margaret Sova Mccabe

Journal of Food Law & Policy

Why is the relationship between our food system and federalism important to American law and health? It is important simply because federal law controls the American food system. This essay considers how federal law came to structure our food system, and suggests that though food is an essential part of our national economy, the dominating role of the federal government alienates citizens from their food system. It does so by characterizing food as a primarily economic issue, rather than one that has ethical, health, and cultural components. However, state and local governments have much to offer in terms of broadening ...


Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin Jul 2021

Rules Of The Road: The Struggle For Safety And The Unmet Promise Of Federalism, Sara C. Bronin

Cornell Law Faculty Publications

American streets have become increasingly dangerous. 2020 saw the highest year-over-year increase in roadway death rates in 96 years, and the last year for which we have data on non-drivers, 2018, was the was the deadliest year for pedestrians and cyclists in three decades. Though this resurgence of road violence has many complex causes, what makes American roads uniquely deadly are laws that lock in two interrelated design problems: unfriendly streets and unsafe vehicles.

Design standards articulate how streets and vehicles look and function. As they have been enshrined in law, they favor drivers and their passengers over any other ...


Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower Jun 2021

Executive Unilateralism And Individual Rights In A Federalist System, Meredith Mclain, Sharece Thrower

William & Mary Bill of Rights Journal

Presidents have a wide array of tools at their disposal to unilaterally influence public policy, without the direct approval of Congress or the courts. These unilateral actions have the potential to affect a variety of individual rights, either profitably or adversely. Governors too can employ unilateral directives for similar purposes, often impacting an even wider range of rights. In this Article, we collect all executive orders and memoranda related to individual rights issued between 1981 and 2018 at the federal level, and across the U.S. states, to analyze their use over time. We find that chief executives of all ...


Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond Jun 2021

Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond

Michigan Law Review

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern ...


Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney Mar 2021

Takings Localism, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and gender-neutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local ...


Reconstructing State Republics, Francesca L. Procaccini Jan 2021

Reconstructing State Republics, Francesca L. Procaccini

Vanderbilt Law School Faculty Publications

Our national political dysfunction is rooted in constitutionally dysfunctional states. States today are devolving into modern aristocracies through laws that depress popular control, entwine wealth and power, and insulate incumbents from democratic oversight and accountability. These unrepublican states corrupt the entire United States. It is for this reason that the Constitution obligates the United States to restore ailing states to their full republican strength. But how? For all its attention to process, the Constitution is silent on how the United States may exercise its sweeping Article IV power to “guarantee to every State in this Union a Republican Form of ...


Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer Jan 2021

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court ...


The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter Jan 2021

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal constitution, they were drafted – and have been repeatedly rewritten and amended – to ...


United/States: A Revolutionary History Of American Statehood, Craig Green Oct 2020

United/States: A Revolutionary History Of American Statehood, Craig Green

Michigan Law Review

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge ...


Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis Oct 2020

Dirty Johns: Prosecuting Prostituted Women In Pennsylvania And The Need For Reform, Mckay Lewis

Dickinson Law Review (2017-Present)

Prostitution is as old as human civilization itself. Throughout history, public attitudes toward prostituted women have varied greatly. But adverse consequences of the practice—usually imposed by men purchasing sexual services—have continuously been present. Prostituted women have regularly been subject to violence, discrimination, and indifference from their clients, the general public, and even law enforcement and judicial officers.

Jurisdictions can choose to adopt one of three general approaches to prostitution regulation: (1) criminalization; (2) legalization/ decriminalization; or (3) a hybrid approach known as the Nordic Model. Criminalization regimes are regularly associated with disparate treatment between prostituted women and their ...


Transparency Deserts, Christina Koningisor Apr 2020

Transparency Deserts, Christina Koningisor

Northwestern University Law Review

Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law.

In contrast, scholars have paid comparatively little attention to transparency laws at the ...


Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi Apr 2020

Mhpaea & Marble Cake: Parity & The Forgotten Frame Of Federalism, Taleed El-Sabawi

Dickinson Law Review (2017-Present)

No abstract provided.


The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey Apr 2020

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have ...


Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence Apr 2020

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.


Out Of Sight, But Not Out Of Mind: Reevaluating The Role Of Federalism In Adequately Regulating Concentrated Animal Feeding Operations, Madhavi Kulkarni Mar 2020

Out Of Sight, But Not Out Of Mind: Reevaluating The Role Of Federalism In Adequately Regulating Concentrated Animal Feeding Operations, Madhavi Kulkarni

William & Mary Environmental Law and Policy Review

No abstract provided.


States’ Evolving Role In The Supplemental Nutritional Assistance Program, David A. Super Mar 2020

States’ Evolving Role In The Supplemental Nutritional Assistance Program, David A. Super

Georgetown Law Faculty Publications and Other Works

States have always been crucial to the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps). Even though the federal government has paid virtually all the program’s benefit costs, state administration has always been indispensable for several reasons. State and local governments pay their staff considerably less than the federal government, making state administration less expensive. States already administer other important antipoverty programs, notably family cash assistance and Medicaid, allowing them to coordinate the programs and minimize repetitive activities. And states have somewhat lower, and less polarizing, political footprints than does the federal government, moderating criticism of the program. In ...


Conclusion: A Way Forward, Peter B. Edelman Mar 2020

Conclusion: A Way Forward, Peter B. Edelman

Georgetown Law Faculty Publications and Other Works

Where do we go next? I have three suggestions. One is to enlarge the frame of our work on poverty and race, including a focus on the ever-widening chasm of inequality, and all of it pressing toward the center stage of national attention. A second is to consolidate our work about income, jobs, and cash assistance into a unified frame, which I call a three-legged stool. And the third is to think from a perspective of place, and what that tells us about our antipoverty work.

We need a banner, a message, a theme, a politics for ending poverty. The ...


The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd Mar 2020

The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd

Michigan Journal of Environmental & Administrative Law

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose ...


The Belloni Decision And Its Legacy: United States V. Oregon And Its Far-Reaching Effects After A Half-Century, Michael Blumm, Cari L. Baermann Jan 2020

The Belloni Decision And Its Legacy: United States V. Oregon And Its Far-Reaching Effects After A Half-Century, Michael Blumm, Cari L. Baermann

Faculty Articles

Fifty years ago, Judge Robert Belloni handed down an historic treaty fishing rights case in Sohappy v. Smith, later consolidated into United States v. Oregon, which remains among the longest running federal district court cases in history. Judge Belloni ruled that the state violated Columbia River tribes’ treaty rights by failing to ensure “a fair share” to tribal harvesters and called upon the state to give separate consideration to the tribal fishery and make it management priority co-equal with its goals for non-treaty commercial and recreational fisheries. This result was premised on Belloni’s recognition of the inherent biases in ...