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Federalism And Faith, Ira C. Lupu, Robert W. Tuttle
Federalism And Faith, Ira C. Lupu, Robert W. Tuttle
GW Law Faculty Publications & Other Works
Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.
This paper offers a focused (re)consideration …
From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman
From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …
Federalism, Instrumentalism, And The Legacy Of The Rehnquist Court, Peter J. Smith
Federalism, Instrumentalism, And The Legacy Of The Rehnquist Court, Peter J. Smith
GW Law Faculty Publications & Other Works
This paper starts from the proposition that although the Rehnquist Court imposed limits on federal power in the name of states' rights far more aggressively than did its post-1937 predecessors, it just as often chose not to impose limits in cases that otherwise fairly can be thought to have presented a question of federalism. The article then makes three claims. First, the article argues that any ultimately satisfying account of the Rehnquist Court's federalism doctrine must acknowledge that the decisions have often appeared to be driven as much by the Justices' policy preferences about the underlying substantive matters at issue …