Law Commons^™

Federalism And The Military Power Of The United States, Robert Leider

Vanderbilt Law Review

This Article examines the original meaning of the constitutional provisions governing the raising and organization of military forces. It argues that the Framers carefully divided the military between the federal and state governments. This division provided structural checks against the misuse of military power and made it more difficult to use offensive military force. These structural checks have been compromised by the creation of the U.S. Army Reserve, the dual enlistment of National Guard officers and soldiers, and the acceptance of conscription into the national army, all of which have enhanced federal military power beyond its original constitutional limits.

This …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Vanderbilt Law Review

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants,' and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Vanderbilt Law Review

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it is a context-sensitive empirical question whether specific applications of the …

Five Views Of Federalism: "Converse-1983" In Context, Akhil R. Amar

Vanderbilt Law Review

In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a "converse-1983" model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their "persons, houses, papers, [or] effects" had been …

Three Faces Of Federalism: Finding A Formula For The Future, Deborah J. Merritt

Vanderbilt Law Review

The first, and oldest, of the Supreme Court's concepts of federalism is the territorial model. This model recognizes that there is a discernible boundary between the subjects fit for national regulation and those reserved for state governance. Territorialists argue that the national government is supreme in some areas, while states reign sovereign in others. Adherents of this model, for example, might declare that the national government directs foreign affairs while the states control domestic relations.

Under the territorial model, federalism violations occur when the national government attempts to invade a substantive area of law reserved to the states. The Supreme …

Federalism, Separation Of Powers, And Individual Liberties, Dennis G. Lagory

Vanderbilt Law Review

In a world that the Framers hardly could have anticipated, the Constitution remains a singularly effective instrument for the pres- ervation of individual liberty. In its allocation of power between the states and the federal government, it provides Americans with multiple champions of their rights--the federal government, which protects a liberty that is constantly evolving to adapt traditional values to new realities, and the state governments, which protect the basic liberties to which mankind has always been entitled. In its allocation of power between the branches of the federal government, the Constitution provides us with a polity possessing powers adequate …

The Constitutionality Of Statutes Of Repose: Federalism Reigns, Josephine H. Hicks

Vanderbilt Law Review

The development of common-law tort liability, especially since the late 1950s and early 1960s, has broken many of the barriers to plaintiff recovery. The abrogation of the privity requirement, the evolution of the discovery rule, and the advent of strict liability were primary agents in this "assault upon the citadel."' These developments have threatened many potential tort defendants, particularly members of the manufacturing and construction industries and the medical profession. In response to lobbying pressure from these groups, many state legislatures have adopted measures to limit tort recoveries. One of the measures most popular among defendants has been the enactment …

Some Intersections Of The Negative Commerce Clause And The New Federalism, James F. Blumstein

Vanderbilt Law Review

Much has been written about the change in the Supreme Court's judicial philosophy, as a new, ascendant majority has been able successfully to implement its emerging notions of judicial reticence and self-abnegation. This fundamental turnabout in judicial perspective is hardly coincidental, since it reflects the fulfillment of an oft-repeated campaign pledge of Richard Nixon, who in 1968 promised, if elected, to appoint so-called strict constructionists to the Court.' In a basic way his appointees have succeeded in modifying the activist stance that prevailed on the Court during much of the tenure of Earl Warren as Chief Justice. With notable exceptions …

Motor Carrier Regulation--An Adventure In Federalism, Val Sanford

Vanderbilt Law Review

By virtue of the nature of our federal system every attempt to regulate extensive economic activity involves constantly recurring problems as to the proper allocation of governmental power between the state and national governments, and thus problems as to the proper balancing of local or state and national interests. The development of motor carrier regulation in the United States has been controlled by the general concepts of federalism and exemplifies the nature of the basic problems inherent in those concepts. The purpose of this article is to examine the regulation of motor carriers from the standpoint of the allocation of …

Crosskey's Constitution: An Archeological Blueprint, Howard J. Graham

Vanderbilt Law Review

Could it be fortunate that so much of history is a closed, or at least a forbidden, book? Otherwise might we not squander our resources reliving and refighting the past? The present soon would be unendurable, the future an endless remarshalling yard for causes stretching back to antiquity.

If the first volumes of Professor Crosskey's study invite this somber opening reflection, it is not that his achievement is unimpressive. Here, undeniably, is a work in the great tradition of controversial writing. Few lawyers and certainly fewer historians--ever willingly have assumed greater burdens of proof. Yet fewer still have contrived a …