Law Commons^™

The Alfonse And Gaston Of Governmental Response To National Public Health Emergencies: Lessons Learned From Hurricane Katrina For The Federal Government And The States, Michael Greenberger

Michael Greenberger

Hurricane Katrina renewed an old debate concerning which level of government should lead the response effort to catastrophic disasters. Traditionally, emergency response is handled at the most local level possible. Hurricane Katrina, however, and other catastrophes that may be labeled "Incidents of National Significance," are examples of emergencies of such magnitude that federal assets must be brought to bear to respond adequately to the situation. As such Incidents will almost always affect interstate commerce, Congress' commerce powers justify federal intervention in, and if necessary, supervision of the response. In such situations, the National Response Plan provides for extensive coordination between …

The Role Of The Federal Government In Response To Catastrophic Health Emergencies: Lessons Learned From Hurricane Katrina, Michael Greenberger

Michael Greenberger

In much of the recent thought devoted to the role of states in responding to catastrophic public health emergencies, as most clearly evidenced by the commentary surrounding the Centers for Disease Control and Prevention- sponsored Model State Emergency Health Powers Act (Model Act), there is a focus on state governments being viewed as the exclusive controlling governmental agent supervising the governmental response. Much of that thinking is premised on a view of limitations placed on Congress’ power to act in public health emergencies emanating from Commerce Clause restrictions in the Supreme Court decisions of U.S. v. Lopez, 514 U.S. 549 …

Did The Founding Fathers Do "A Heckuva Job"? Constitutional Authorization For The Use Of Federal Troops To Prevent The Loss Of A Major American City, Michael Greenberger

Michael Greenberger

As the one year anniversary of the landfall of Hurricane Katrina on the Gulf Coast passed, the highly critical reports of the Bush Administration's mismanagement of the response to that catastrophe continued to mount. Central to the criticism of the Administration was its indecisiveness in deploying military assets to rescue and protect Gulf Coast citizens overwhelmed by one of the country's worst natural disasters. The President failed to act because of a perceived lack of statutory and constitutional authority to override the Louisiana Governor's refusal to allow the Federal government to have ultimate control over the deployment of Federal troops …

False Conflict: Who's In Charge Of National Public Health Catastrophes, Michael Greenberger

Michael Greenberger

Hurricane Katrina renewed an old debate concerning which level of government should lead the response effort to catastrophic disasters. Traditionally, emergency response is handled at the most local level possible. The National Response Plan (NRP) adheres to this tenet, while providing for extensive coordination between the federal government and states and localities, if necessary. In doing so, the NRP provides procedures to ensure that federal assets may be brought to bear, without stomping on the nation's time honored commitment to the principles of federalism.

Slides: Indian Water Rights, Robert T. Anderson

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Robert T. Anderson, Native American Law Center, University of Washington Law School

19 slides

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

David S. Bogen

This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by …

It's Getting Hot In Herre. California Senate Bill 1368 And The Dormant Commerce Clause, Andrew F. Adams

San Diego Journal of Climate & Energy Law

This Article addresses whether S.B. 1368 could hold up to a Commerce Clause challenge in three stages. Part II discuses the dormant Commerce Clause and how it is applied to state laws that potentially affect interstate commerce. It explains the history and development of the concept and fleshes out the two-step test that exists today: (1) courts determine whether a law is facially discriminatory; (2) if not, courts apply a test that weighs the respective burdens and benefits of the law. Part II also discusses the different ways in which many of the current Supreme Court Justices interpret and apply …

Broken Silence: Congressional Inaction, Judicial Reaction, And The Need For A Federally Mandated Physical Presence Standard For State Business Activity Taxes, Marjorie Gell

Marjorie Gell

This article concerns the need for Congress to resolve a serious and longstanding question of what jurisdictional standard a state should apply in order to impose a business activity tax on an out-of-state entity with no in-state physical presence. This is a question of enormous practical importance on which the states are squarely in conflict, and one that the U.S. Supreme Court has consistently refused to address. Currently there are two bills pending in Congress that would create a physical presence standard for all state business activity taxes. This article argues that (1) Congress needs act on these bills and …

Jon & Kate Plus The State: Why Congress Should Protect Children In Reality Programming, Dayna B. Royal

Dayna B. Royal

As "reality" programming continues to increase in popularity, so too does the number of children living out their young lives in front of the camera. Yet the current legal regime is inadequate to protect these children, whose parents have betrayed their best interests for fame and fortune. This article argues that Congress should enact a statute providing a regulatory sliding scale based on age that would largely prohibit children from participating in reality programming. A federal statute would bring clarity to this unsettled area of the law while ensuring that parents and programming executives cannot skirt individual state laws and …

Eatin' Good? Not In This Neighborhood: A Legal Analysis Of Disparities In Food Availability And Quality At Chain Supermarkets In Poverty-Stricken Areas, Nareissa Smith

Michigan Journal of Race and Law

Many Americans-especially the poor-face severe hurdles in their attempts to secure the most basic of human needs-food. One reason for this struggle is the tendency of chain supermarkets to provide a limited selection of goods and a lower quality of goods to patrons in less affluent neighborhoods. Healthier items such as soy milks, fresh fish, and lean meats are not present in these stores, and the produce that is present is typically well past the peak of freshness. Yet, if the same patron were to go to another supermarket owned by the same chain--but located in a wealthier neighborhood-she would …

The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a …

Rico Overreach: How The Federal Government's Escalating Offensive Against Gangs Has Run Afoul Of The Constitution, Matthew H. Blumenstein

Vanderbilt Law Review

The United States has a problem with gangs. According to the Department of Justice, there are more than twenty thousand gangs in the United States today, with over one million members. There are gangs in every state and in the District of Columbia. This is a dire problem in the eyes of federal government officials. According to Attorney General Michael Mukasey, "Gangs threaten our society .... They bring a culture of violence and drugs to our doorsteps, creating an atmosphere of fear, diminishing the quality of life, and endangering the safety, well-being, and future of our children." In response, the …