Law Commons^™

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

Texas's "Operation Lone Star": The Supremacy Clause And Dual Federalism In Light Of Arizona V. United States, Reynaldo Ramirez, Jr

Texas A&M Law Review

The Supremacy Clause of Article Six of the United States Constitution was enacted to remedy the failures of the Articles of Confederation. Initially, the states enjoyed near-boundless state sovereignty in nearly all aspects of the first federalist government. However, in practice, the necessity of federal supremacy for conducting the business of governing obligated the states to prioritize national interests above the states’ sovereignty. To do so required revision of the Articles of Confederation. This drafting culminated in the contentious ratification of the Constitution in 1788, including the Supremacy Clause and the Tenth Amendment. That said, ratifying the Supremacy Clause and …

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron

Pepperdine Law Review

The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable …

Black-Box Immigration Federalism, David S. Rubenstein

Michigan Law Review

In Immigration Outside the Law, Hiroshi Motomura confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura’s treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book’s intellectual arc begins with its title: “Immigration Outside the Law.” As the narrative unfolds, however, Motomura explains that undocumented immigrants are “Americans in waiting,” with moral and legal claims to societal integration.

Fundamental Unenumerated Rights Under The Ninth Amendment And The Privileges Or Immunities Clause, Adam Lamparello

Akron Law Review

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

Must Treaty Violations Be Remedied?: A Critique Of Sanchez-Llamas V. Oregon, John Quigley

Georgia Journal of International & Comparative Law

No abstract provided.

Carbonite Legal Conflict In California, Steven Ferrey

San Diego Journal of Climate & Energy Law

This Article thaws several legal layers of California carbonite, tranche- by-tranche, and examines the legal fabric. First, in Section II we examine federal Constitutional challenges to California’s A.B. 32 and sustainable energy statutes under the Supremacy Clause. Section III analyzes litigation against California carbon control pursuant to the Commerce Clause of the Constitution. Section IV analyzes challenges to the California regulation pursuant to state law violations, distinguishing those which proceed from the California Environmental Quality Act (CEQA) and those which utilize other state administrative laws to challenge California’s carbon choices and implementation. Section V examines the trilogy of litigation set …

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

Bates V. Dow Agrosciences: Overcoming Federal Preemption And Giving The People A Voice , Kim Ly

Journal of the National Association of Administrative Law Judiciary

This note explores the U.S. Supreme Court's ruling in Bates v. Dow Agrosciences LLC. Part II discusses the historical background and procedural history of the case. Part III lays out the facts of the Bates case. Part IV analyzes the majority opinion given by Justice Stevens and Justice Breyer's concurring opinion, and the opinion of Justice Thomas, concurring in part and dissenting in part. Part V considers Bates's judicial, legislative and administrative impact. Part VI concludes the discussion of the Bates decision.

Preemption And Choice-Of-Law Coordination, Erin O'Hara O'Connor, Larry E. Ribstein

Michigan Law Review

The doctrine treating federal preemption of state law has been plagued by uncertainty and confusion. Part of the problem is that courts purport to interpret congressional intent when often Congress has never considered the particular preemption question at issue. This Article suggests that courts deciding preemption cases should take seriously a commonly articulated rationale for the federalization of law: the need to coordinate applicable legal standards in order to facilitate a national market or to otherwise provide clear guidance to parties regarding the laws that apply to their conduct. In situations where federal law can serve a coordinating function but …

Federal Governmental Power: Preemption From The October 2008 Term, Eileen Kaufman

Touro Law Review

In a stunning trifecta, the Supreme Court ruled in favor of consumers and held that federal law did not preempt state consumer claims. The three cases concerned patients injured by drugs, smokers misled by false advertising, and borrowers victimized by predatory lending practices. These cases represent the latest battle in the ongoing war between consumer advocates and business entities over whether federal laws should be interpreted to erect barriers against state consumer protection laws.

Wyeth v. Levine raised the issue of whether approval of a drug by the F.D.A. preempts a state tort claim based on failure to warn. Altria …

Chamber Of Commerce Of U.S. V. Whiting: The Possibility Of Anti-Discriminatory Immigration Reform In An Era Of Resurgent Federalism, Keelan Diana

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Rebel Without A Clause: The Irrelevance Of Article Vi To Constitutional Supremacy, Gary Lawson

Michigan Law Review First Impressions

With Stare Decisis and Constitutional Text, Jonathan Mitchell has produced what I think is the most interesting and creative textual defense (or at least partial defense) to date of the use of horizontal precedent in federal constitutional cases. Mitchell's careful analysis of the Supremacy Clause is fascinating and instructive, and he does an impeccable job of drawing out the implications of his premise that the Supremacy Clause prescribes only a very limited choice-of-law rule-a rule that does not, by its own terms, specifically elevate the Constitution above federal statutes and treaties. His innovative and intriguing framework yields four distinct conclusions …

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

When A Door Closes, A Window Opens: Using Preemption To Challenge State Medicaid Cutbacks, Martina Brendel

Chicago-Kent Law Review

Following the Supreme Court's 2002 decision in Gonzaga University v. Doe, several circuit courts of appeal have disallowed enforcement of key Medicaid provisions under § 1983. Notably, courts have placed no similar restrictions on the enforceability of these provisions under the Supremacy Clause. This article discusses Lankford v. Sherman and Independent Living Center v. Shewry, two recent appellate decisions in which plaintiffs succeeded in preventing Medicaid cuts under a preemption theory. It then addresses the limits of the Supremacy Clause, which applies to a narrower range of state action than § 1983. It argues that Medicaid reimbursement rates are "laws" …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …

Forgive Me, Founding Fathers For I Have Sinned, Carolyn A. Pytynia

Vanderbilt Journal of Transnational Law

The Supremacy Clause of the U.S. Constitution grants the federal government the authority to make the law of the land and, in turn, preempt state law that is incompatible with the federal government's legislative and treaty making efforts. In addition, other provisions of the Constitution authorize the federal government to participate in matters of foreign affairs, and the Supreme Court has found this authority to be exclusive to the federal government in a number of cases. However, the Constitution is silent on the issue of when federal preemption of state law is appropriate when states seek to legislate in matters …

The Unconstitutionality Of Mississippi's Employment Protection Act And A Framework For Assessing Similar State Immigration Employment Laws, Nicholas Neidzwski

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Constitutionality Of State And Local Laws Targeting Immigrants, Karla Mari Mckanders

University of Arkansas at Little Rock Law Review

No abstract provided.

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Vanderbilt Journal of Entertainment & Technology Law

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration.

The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley

St. Mary's Law Journal

Arbitration is a process which allows parties voluntarily to refer their disputes to an impartial third person, an arbiter, selected by them to determine the parties’ rights and liabilities. Initially, arbitration was encouraged between corporate entities with equal bargaining power. But, due to federal policy favoring arbitration, the use of predispute arbitration agreements have increased dramatically, and such clauses can now be found in many noncommercial consumer contracts, especially those in the health care industry. The strong federal policy favoring arbitration originated with Congress’ passing of the Federal Arbitration Act (FAA). Under the FAA, an arbitration agreement is enforceable if …

Circumventing The Supremacy Clause? Understanding The Constitutional Implications Of The United States' Treatment Of Treaty Obligations Through An Analysis Of The New York Convention, Amber A. Ward

San Diego International Law Journal

The United States participation in treaties and other international agreements is becoming more necessary and an increasingly prevalent occurrence as a result of globalization. The rapid pace of technological innovation and more effective means of transportation have caused our world to shrink, making countries even more interconnected. The corresponding explosion of international business and commercial transactions has resulted in high levels of risk and uncertainty due to a complex mix of laws, monetary factors, politics and cultures that vary across countries. For global players, it has become essential to have international agreements that can mitigate the risks inherent in international …

Subdivisions, Standing And The Supremacy Clause: Can A Political Subdivision Sue Its Parent State Under Federal Law, Brian P. Keenan

Michigan Law Review

This Note argues that political subdivisions should be able to seek protection from their parent states under the Supremacy Clause when alleging a conflict between state law and any federal law, be it the Constitution, treaty, or a federal statute. Part I argues that the precedential cases like Hunter and Trenton were limited to the constitutional provisions in question and therefore did not bar all suits under the Supremacy Clause. Part II shows that the issue is one of constitutional protection of political subdivisions, rather than Article III standing, which had a completely different meaning when Hunter and Trenton were …

Vectoral Federalism, Scott Dodson

Georgia State University Law Review

No abstract provided.

The "Horizontal Effect" Of Constitutional Rights, Stephen Gardbaum

Michigan Law Review

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and …

The Irrepressible Myth Of Marbury, Michael Stokes Paulsen

Michigan Law Review

Nearly all of American constitutional law today rests on a myth. The myth, presented as standard history both in junior high civics texts and in advanced law school courses on constitutional law, runs something like this: A long, long time ago - 1803, if the storyteller is trying to be precise - in the famous case of Marbury v. Madison, the Supreme Court of the United States created the doctrine of "judicial review." Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional. As …

Compacts, Cartels, And Congressional Consent, Michael S. Greve

Missouri Law Review

Compacts, Cartels, and Congressional Consent argues that U.S. Steel Corp. v. Multistate Tax Commission was wrongly decided. Congressional “negatives,” including the Compact Clause invert the default rule for constitutionally suspect classes of state laws. Whereas ordinary state laws are permitted to go into (and remain in) effect unless and until Congress or the courts exercise their authority under the Supremacy Clause to state agreements that encroach on federal supremacy—which are unlawful in any event—the Supreme court has re-inverted the constitutional presumption and emptied the Compact Clause of all content. This Article explains the forgotten constitutional logic and wisdom of the …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …