NYU law professor Rick Hills isn’t nearly as pleased with the Supreme Court’s important property rights decision in Koontz as I am. He objects to the result primarily on federalism grounds. In Rick’s view, federal courts should not enforce significant Takings Clause constraints on state land use policies because they can’t effectively with the diversity […]
Archive | Federalism
Kennedy’s Conspicuous Silence in Kebodeaux
Justice Kennedy clearly cares about federalism. He has written more than a few opinions extolling the importance of “dual sovereignty” and maintaining judicially enforceable limits on the scope of federal power. Every so often, however, there comes a case in which Justice Kennedy fully and silently joins a majority opinion that embraces an incredibly expansive […]
Symposium on Greve’s Upside-Down Constitution
Over the past several days Balkinization has hosted a blog symposium on Michael Greve’s book, The Upside-Down Constitution. this is an important and provocative book that simultaneously reifies and challenges much of what people tend to think about the nature of our federal system, and Jack Balkin assembled an appropriately impressive group of commentators on […]
United States v. Kebodeaux and Congressional Power under the Necessary and Proper Clause
Amidst the hoopla surrounding Fisher v. University of Texas, most people probably missed today’s other potentially significant Supreme Court decision: United States v. Kebodeaux, which deals with Congress powers under the Necessary and Proper Clause. Trevor Burrus of the Cato Institute (who assisted in the preparation of an amicus brief I coauthored on Cato’s behalf […]
Goldstein on the Court’s “Power”
This morning, SCOTUSBlog’s Tom Goldstein has an essay on the Supreme Court’s power of judicial review. It begins: You should decide now what kind of Supreme Court you want. Don’t wait until after the Justices hand down the Term’s major decisions. That will be too late. Make a real choice now about how much power […]
Cato Brief in Bond Featured in National Law Journal
A while ago I posted about a brief that I filed in Bond v. United States on behalf of the Cato Institute et al., arguing that a treaty cannot increase the legislative power of Congress. Over at Cato, Ilya Shapiro reports that the National Law Journal recently featured our brief as its “brief of the […]
My Take on Heather Gerken’s Progressive Defense of Federalism
I recently participated in a Tulsa Law Review symposium in honor of Yale Law School Professor Heather Gerken, one of the nation’s leading federalism scholars. Much of Gerken’s work urges her fellow political liberals to rethink their traditional distaste for federalism. My contribution to the symposium is now available on SSRN. Here is the abstract: […]
Can a Treaty Increase The Power of Congress?
I will be speaking on this topic at the Cato Institute on Friday, June 14, at noon. The inimitable Judge Kozinski will be commenting. Luncheon to follow. Information and registration here.
George Will on Reducing Mandatory Minimum Sentences
George Will recently published an interesting column on a bill that would give judges greater discretion to reduce mandatory minimum sentences for federal crimes, co-sponsored by Democratic Senator Patrick Leahy and Republican Rand Paul: Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate […]
Bond Amicus Brief for Cato et al.
As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner. Yesterday, I filed an amicus brief on behalf of the […]
Nullification Nonsense
Earlier this week I took Steve Benen to task for suggesting that state governments could not refuse to enforce federal laws. Benen had suggested that such decisions were tantamount to nullification. (A claim he has walked back, to his credit.) While Benen’s outrage was a bit misplaced in the post I critiqued, it’s not as […]
Paul Clement’s Brief for Petitioner in Bond v. United States
As regular readers know, the Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the legislative power of Congress. In 1920, in Missouri v. Holland, the Supreme Court seemed to say yes. In 2005, in the Harvard Law Review, I said no. […]
A Constitutional Law Lesson for Steve Benen
On Monday, the Texas House of Representatives passed a bill that would bar state officials from enforcing any new federal gun laws. Via Kevin Drum, I see that the MaddowBlog’s Steve Benen calls the bill “crazy.” In this case, Texas’ nullification bill effectively hopes to freeze the status quo of federal gun laws in place […]
The Health Care Case: The Supreme Court’s Decision and its Implications – Now Available for Pre-ordering
By Ilya Somin on May 2, 2013 11:30 am in Federalism, Health Care, Individual Mandate, Necessary and Proper
The Health Care Case: The Supreme Court’s Decision and its Implications – A new book on last year’s controversial Supreme Court decision on Obamacare is now available for pre-order at Amazon. The book is edited by Columbia law professors Nathaniel Persily, Gillian Metzger, and Trevor Morrison, and published by Oxford University Press. It contains essays […]
Why maximal enforcement of federal gun laws is not always a good idea
By David Kopel on April 26, 2013 4:27 am in Commerce Clause, Congress, Constitutional Law, Criminal Law, Federalism, Guns, Immigration, Necessary and Proper, Supreme Court, War on Drugs
A common trope of many Second Amendment advocates is to urge more vigorous enforcement of existing federal gun control laws, as the alternative to enacting additional laws. Rhetorically, that’s very effective. But as a policy matter, it is not always a good idea. Consider legislation recently considered by the Senate: The Manchin-Toomey amendment was supported […]