Law Commons^™

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 crucial …

Federalism And Equal Citizenship: The Constitutional Case For D.C. Statehood, Jessica Bulman-Pozen, Olatunde C.A. Johnson

Faculty Scholarship

As the question of D.C. statehood commands national attention, the legal discourse remains stilted. The constitutional question we should be debating is not whether statehood is permitted but whether it is required.

Commentators have been focusing on the wrong constitutional provisions. The Founding document and the Twenty-Third Amendment do not resolve D.C.’s status. The Reconstruction Amendments — and the principle of federated, equal citizenship they articulate — do. The Fourteenth Amendment’s Citizenship Clause, as glossed by subsequent amendments, not only establishes birthright national citizenship and decouples it from race and caste but also makes state citizenship a constitutive component of …

The Field Of State Civil Courts, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan, Jessica K. Steinberg

Faculty Scholarship

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

Slavery's Constitution: Rethinking The Federal Consensus, Maeve Glass

Faculty Scholarship

For at least half a century, scholars of the early American Constitution have noted the archival prominence of a doctrine known as the “federal consensus.” This doctrine instructed that Congress had no power to interfere with the institution of slavery in the states where it existed. Despite its ubiquity in the records, our understanding of how and why this doctrine emerged is hazy at best. Working from a conceptual map of America’s founding that features thirteen local governments coalescing into two feuding sections of North and South, commentators have tended to explain the federal consensus either as a vestige of …

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 …

Beholding Law: Amadeo On The Argentine Constitution, Christina D. Ponsa-Kraus, Erin F. Delaney

Faculty Scholarship

This essay introduces an online edition of Santos P. Amadeo’s Argentine Constitutional Law to be published by the Academia Puertorriqueña de Jurisprudencia y Legislación. Tracing the book to its origins in a paper Amadeo wrote for a seminar in comparative constitutional law at Columbia Law School in the 1930s, we discuss the intellectual context that gave rise to the book and assess its author’s methodological choices. We then examine one particular substantive choice: Whereas the paper specifically draws attention to the importance of understanding every form of political subdivision in a federalist system – identifying Argentina’s as the provinces, the …

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of …

Early Childhood Development And The Replication Of Poverty, Clare Huntington

Faculty Scholarship

Antipoverty efforts must begin early because abundant evidence demonstrates that experiences during the first five years of life lay a foundation for future learning and the acquisition of skills. Public investments can help foster early childhood development, but these efforts must begin early and must involve both parents and children. This chapter describes the patterns of convergence and divergence in state approaches to supporting early childhood development. For the prenatal period until age three, the federal government is the primary source of funds, and there is fairly limited variation in how this money is spent across the states. For the …

Driving Toward Autonomy? The Fbi In The Federal System, 1908-1960, Daniel C. Richman, Sarah Seo

Faculty Scholarship

This paper explains the growth of the FBI (“Bureau”) in the United States at a time when criminal justice was largely a local matter by reframing the criminal justice “(eco)system” in terms of informational economy, rather than jurisdictional authority. It argues that the Bureau came to occupy a key position in the national law enforcement ecosystem by providing an informational infrastructure that enabled it to cultivate relationships with local police agencies. This history offers two insights about the nature of American state and federalism in the twentieth century. First, the Bureau’s particular strategy for enlarging its capacity beyond its small …

Our Regionalism, Jessica Bulman-Pozen

Faculty Scholarship

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries.

In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to …

The Challenge Of The New Preemption, Richard Briffault

Faculty Scholarship

The past decade has witnessed the emergence and rapid spread of a new and aggressive form of state preemption of local government action across a wide range of subjects, including among others firearms, workplace conditions, sanctuary cities, antidiscrimination laws, and environmental and public health regulation. Particularly striking are punitive measures that do not just preempt local measures but also hit local officials or governments with criminal or civil fines, state aid cutoffs, or liability for damages, as well as broad preemption proposals that would virtually end local initiative over a wide range of subjects. The rise of the new preemption …

Preemption And Commandeering Without Congress, Jessica Bulman-Pozen

Faculty Scholarship

In a time of polarization, states may introduce salutary pluralism into an executive-dominated regime. With partisan divisions sidelining Congress, states are at once principal implementers and principal opponents of presidential policies. As polarization makes states more central to national policymaking, however, it also poses new threats to their ability to act. This Essay cautions against recent efforts to preempt state control over state officials and to require states to follow other states’ policies, using sanctuary jurisdictions and the pending federal Concealed Carry Reciprocity Act as examples.

Federalism All The Way Up: State Standing And "The New Process Federalism", Jessica Bulman-Pozen

Faculty Scholarship

This commentary considers what federalism all the way up means for Gerken’s proposed new process federalism. The state-federal integration she documents underscores why judicial policing of “conditions for federal-state bargaining” cannot be limited to state-federal relations in the traditional sense. It must extend to state challenges to the allocation and exercise of authority within the federal government. The new process federalism would therefore do well to address when states will have standing to bring such cases in federal court. After Part I describes contemporary federalism-all-the-way-up litigation, Part II suggests that Gerken’s “Federalism 3.0” complicates both traditional parens patriae and sovereignty …

The Local Turn; Innovation And Diffusion In Civil Rights Law, Olatunde C.A. Johnson

Faculty Scholarship

Is the future of civil rights subnational? If one is looking for civil rights innovation, much of this innovation might be happening through legislation, regulatory frameworks, and policies adopted by state and local governments. In recent years, states and cities have adopted legislation banning discrimination in housing based on the source of an individual's income, regulating the consideration of arrest or conviction in employment decisions, and prohibiting discrimination in employment based on an applicant's credit history.

This deployment of subnational power is not new to civil rights. Many of the laws and regulatory frameworks that are now core to the …

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …

Defining And Punishing Offenses Under Treaties, Sarah H. Cleveland, William S. Dodge

Faculty Scholarship

One of the principal aims of the U.S. Constitution was to give the federal government authority to comply with its international legal commitments. The scope of Congress's constitutional authority to implement treaties has recently received particular attention. In Bond v. United States, the Court avoided the constitutional questions by construing a statute to respect federalism, but these questions are unlikely to go away. This Article contributes to the ongoing debate by identifying the Offenses Clause as an additional source of Congress's constitutional authority to implement certain treaty commitments. Past scholarship has assumed that the Article I power to "define …

The Rites Of Dissent: Notes On Nationalist Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Responding to Heather K. Gerken’s Childress Lecture, Federalism and Nationalism: Time for a Détente?

In this response, I consider how the nationalist school of federalism reconceptualizes nationalism, and not only federalism. Taking as my starting point Gerken’s claim that federalism can be good for nationalism, that nationalists should “believe in giving power to the states,” I first outline two possible understandings of nationalism suggested by this claim — that “national” refers to the federal government, and that “national” refers to a unified American polity — and explain what it would mean for federalism to serve nationalism so understood. After rejecting …

Partisan Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today’s ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism’s institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and …

From Sovereignty And Process To Administration And Politics: The Afterlife Of American Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. …

National Security Federalism In The Age Of Terror, Matthew C. Waxman

Faculty Scholarship

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …

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 than …

What Happened In Iowa?, David Pozen

Faculty Scholarship

Reply to Nicole Mansker & Neal Devins, Do Judicial Elections Facilitate Popular Constitutionalism; Can They?, 111 Colum. L. Rev. Sidebar 27 (2011).

November 2, 2010 is the latest milestone in the evolution of state judicial elections from sleepy, sterile affairs into meaningful political contests. Following an aggressive ouster campaign, voters in Iowa removed three supreme court justices, including the chief justice, who had joined an opinion finding a right to same-sex marriage under the state constitution. Supporters of the campaign rallied around the mantra, “It’s we the people, not we the courts.” Voter turnout surged to unprecedented levels; the national …

Judicial Elections As Popular Constitutionalism, David E. Pozen

Faculty Scholarship

One of the most important recent developments in American legal theory is the burgeoning interest in "popular constitutionalism." One of the most important features of the American legal system is the selection of state judges – judges who resolve thousands of state and federal constitutional questions each year – by popular election. Although a large literature addresses each of these subjects, scholarship has rarely bridged the two. Hardly anyone has evaluated judicial elections in light of popular constitutionalism, or vice versa.

This Article undertakes that thought experiment. Conceptualizing judicial elections as instruments of popular constitutionalism, the Article aims to show, …

Geier V. American Honda Motor Co.: A Story Of Statutes, Regulation And The Common Law, Peter L. Strauss

Faculty Scholarship

This essay was written as a contribution to one of Foundation's "Story" series. In Geier, a lawsuit had been brought on behalf of a teenager whose injuries from an accident might have been lessened if her car had contained an airbag. Plaintiffs sued on the straightforward basis that the design choice to omit a safety device of proven merit made the car unreasonably hazardous. Federal safety regulations had required the maker of her car to install some such device as an airbag in at least 10% of the cars it made the year it made her car – but her …

Treaties And International Regulation, Lori Fisler Damrosch

Faculty Scholarship

The authority of Missouri v. Holland is in no way impaired by developments of the last decade. While Justice Holmes rejected the view that "invisible radiation" from the Tenth Amendment could restrict the treaty power, his approach accepts that a treaty cannot violate "prohibitory words" in the Constitution. Some prohibitory words explicitly protect the interests of the states as against the national government. For example, the framers clearly meant the prohibition in Article I, section 9 on export taxes to bar one form of potential federal taxation that the Southern states found worrisome. In the face of this specific prohibition, …

Facing The Urban Future After September 11, 2001, Richard Briffault

Faculty Scholarship

In this essay I would like to address briefly four issues of importance to local governments raised by the September 11 attack and its aftermath. These issues are the role of local governments in addressing questions of public safety and preparedness; the relations among local governments within a region in responding to terrorism; the role of the federal government in the local response to terrorism; and the implications of September 11 for the structures and functions of local government. These issues are interconnected. Certainly, an effective local response to the public safety challenge posed by terrorism will require more coordinated …

The Role Of Law In The Functioning Of Federal Systems, George A. Bermann

Faculty Scholarship

Federal systems are about the distribution of legal and political power, but law is not only one of the currencies of federalism, it is also one of federalism's most important supports; this chapter considers the role that law plays in establishing and enforcing the system by which both legal and political power are distributed within the USA and the EU. Bermann explores the various ways in which the courts can, and choose to, enforce the principles of federalism beyond the classical ‘political’ and ‘procedural’ safeguards provided by the institutional structures themselves and the constraints on the deliberative process. He describes …

Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None?, Richard Briffault

Faculty Scholarship

Health care reform dominates the domestic agenda of the Clinton Administration. Policy analysts, media pundits, and ordinary citizens are abuzz with the once-arcane terminology of health reform – "managed competition," "single-payer," "regional alliances," "global budgets" – as they ponder the merits and demerits of the leading reform alternatives. At the center of the public debate are questions concerning the role of government in constraining health care costs, maintaining quality, and widening access. But in our federal system there are two governments that can address most domestic problems – the national government and the states – and, although considerable ink has …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …