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Columbia Law School

2012

Federalism

Constitutional Law

Articles 1 - 3 of 3

Full-Text Articles in Law

What The New Deal Settled, Jamal Greene Jan 2012

What The New Deal Settled, Jamal Greene

Faculty Scholarship

This brief essay, written in conjunction with a symposium comparing the Franklin Delano Roosevelt and Obama presidencies, explores the absence of substantive due process arguments in the Affordable Care Act litigation and attendant public discourse. I argue that a substantive due process argument against the Act's individual mandate is at least as sound doctrinally as a federalism-based argument, but to the extent such arguments have been made, they have been rejected as frivolous. I suggest that this phenomenon may result in part from political obstacles to coalescing around and funding a substantive due process argument and in part from ...


Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen Jan 2012

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 ...


What The New Deal Settled, Jamal Greene Jan 2012

What The New Deal Settled, Jamal Greene

Faculty Scholarship

Not since George H.W. Bush banned it from the menu of Air Force One did broccoli receive as much attention as during the legal and political debate over the Patient Protection and Affordable Care Act ("ACA"). Opponents of the ACA have forcefully and repeatedly argued that if Congress has the power to require Americans to purchase health insurance as a means of reducing health care costs, then it likewise has the power to require Americans to eat broccoli. Broccoli is mentioned twelve times across the four Supreme Court opinions issued in the ACA decision – that's eleven more appearances ...