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Full-Text Articles in Law

Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond Jun 2021

Territorial Exceptionalism And The Americanwelfare State, Andrew Hammond

Michigan Law Review

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …


Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr. May 2021

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …


Reframing Article I, Section 8, Richard Primus Apr 2021

Reframing Article I, Section 8, Richard Primus

Articles

Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …