Commandeering Information (and Informing the Commandeered (original) (raw)

Challenging Federalism: How the States’ Loud Constitutional Provocation is Being Met with Silence

Journal of Legislation, 2018

, Federalist No. 80 "The fact that the Paris deal hamstrings the United States while empowering some of the world's top polluting countries should expel any doubt as to why foreign lobbyists should wish to keep our beautiful country tied up and bound down. .. That's not going to happen while I'm president, I'm sorry."-President Donald J. Trump "Trump is AWOL, but California is on the field, ready for battle."-California Governor Jerry Brown † J.D. Candidate, Notre Dame Law School, 2019. The author is grateful for the editorial staff on the Journal of Legislation for helping shape this Note with their detailed editing and insightful comments. Special thanks to Professor Nicole Garnett and Professor William Kelley for providing an initial framework for this paper. Lastly, the author would also like to thank her family, and her father George in particular, for their unwavering support.

Federalism and the Right to Decide Who Decides

Villanova Law Review, 2019

Federal laws sometimes preempt all state policies except those created by legislative enactment. For example, under the Welfare Reform Act of 1996, states cannot give public benefits to undocumented immigrants unless the state legislature enacts a statute that does so. Such laws effectively compel states to delegate their sovereign decision-making power to one entity within a state’s government (like the legislature) rather than others (like the courts). This article argues that using the preemption power to push decisions into state legislatures is unconstitutional. It is similar to the problem with Congress commandeering state officials by making them implement federal regulatory programs. Both practices involve Congress regulating states directly, as opposed to regulating individuals. The only difference is that instead of requiring specific behavior from state officials, Congress is dictating what H.L.A. Hart called “secondary rules”: meaning, here, rules about who has the power to make rules. It’s as if a state created an official to decide which branch of state government should handle any given policy question—a Delegator General—and Congress passed a statute dictating the outcome of that official’s decisions. This article considers the arguments that might be made in defense of delegation-forcing preemption, and finds them unconvincing.

Waivers, Federalism, and the Rule of Law

Perspectives on Political Science, 2016

In this article I evaluate recent federal use of waivers from complex, programmatic legislation in light of concerns regarding federalism and the rule of law. I look to the requirements for the rule of law spelled out by legal theorist Lon Fuller, as well as Supreme Court opinions in National Federation of Independent Business v. Sebelius, 1 and show how large scale waiver structures fail to meet them. Whether specifically provided for in the law or not, waiver provisions related to legislation like No Child Left Behind (NCLB) and the Patient Protection and Affordable Care Act (ACA), fail to empower states to engage in cooperative federalism through bargaining with federal regulators. Rather, in effect they force states to comply with discretionary demands of administrators in order to receive waivers and keep federal funding on which they rely. There is an obvious tension between a waiver-the government's decision to dispense with a statutory requirement in a specific instance-and the rule of law, defined as the cabining of arbitrary power through subordination of governmental acts to settled, consistent rules. Nonetheless, waivers are praised for providing administrators with flexibility to accommodate the variety of circumstances faced by diverse constituencies. In relation to federalism, waivers have been presented as offering states increased freedom in their dealings