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October 3, 2016|

State Attorneys General Remain Unsteady Allies for Federalism

by Paul Nolette|

In response to: Commandeering Federalism: The Rise of the Activist State Attorneys General

New York Attorney General Eric Schneiderman (C) speaks as Massachusetts Attorney General Maura Healey (2nd from R) looks on during a press conference at the office of the New York Attorney General, July 19, 2016 in New York City. They announced lawsuits against Volkswagen AG and its affiliates Audi AG and Porsche AG. (Photo by Drew Angerer/Getty Images)

My thanks to Hans Bader, Michael Toth, and Jonathan F. Mitchell for their thoughtful responses to my essay concerning state attorneys general (AGs) and contemporary American federalism. Each raises good points about the AGs’ various roles in the era of executive federalism that has rapidly expanded during the Obama years. As all three authors note, AGs can and have pushed back on federal power in numerous ways that can indeed provide a check on administrative discretion and regulatory expansion. Ultimately, however, I would emphasize again that AGs are at best unsteady allies of federalism. First, I have a point of agreement…

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They’re Not the Main Culprit

by Hans Bader

State attorneys general aren’t ruining federalism. It was already ruined, as Michael Greve’s 2012 classic The Upside Down Constitution chronicles. It is tempting to blame them, given how badly many state attorneys general behave. Some use their office to enrich themselves or their lawyer pals, or to pursue vendettas against adversaries. The attorney general of Pennsylvania,…

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State Attorneys General Didn’t Start the Fire

by Michael Toth

The American form of government, in the classic formulation of Justice Salmon Chase, contemplates “an indestructible Union composed of indestructible States.”[1] The Constitution, apart from assigning specific functions to the federal government, and prohibiting the states from exercising certain powers, largely leaves the determination of public policy to the 50 states. As numerous jurists, statesmen,…

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Federalism and State Attorneys General

by Jonathan F. Mitchell

There are many challenges in designing a federalist system of government. Perhaps the most daunting is how to create incentives for government officials to preserve a regime of state-by-state decisionmaking—especially when constituent pressures, partisan allegiance, or ideological beliefs tug in other directions. The U.S. Constitution tries to preserve state prerogatives by enumerating the powers of the…

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May 27, 2015|cooperative federalism, executive federalism, Federalism

Federalism, Upside-Down and Executive

by Michael S. Greve|

The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject. The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off…

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April 20, 2015|cooperative federalism, James Buckley, Medicaid

Nationalize It

by Michael S. Greve|

In this Liberty Law Talk with James L. Buckley—Judge, Senator, Saint—he proposed to terminate any and all federal transfer programs. That bold program is conceptually and directionally right. Can it be done, though? Answer, maybe—provided that… The raw numbers are prohibitive, and horrifying. Four states (Mississippi, Louisiana, Tennessee, South Dakota) collect over forty percent of their revenues from the feds. Two-thirds of the states depend on federal transfers for over 30 percent of their budgets. Mind you: these are 2012 data. Federal transfers under the ACA’s Medicaid expansion—a dollar-for-dollar reimbursement for whatever any state chooses to spend—will drive the numbers through the roof.…

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November 24, 2014|Clean Air Act, cooperative federalism, EPA, global warming

EPA’s Greenhouse Gases Regulation Meets Federalism

by Michael S. Greve|

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Under the Constitution, states have no right to “interpose”—that is, to block the enforcement of supreme, validly enacted federal law. However, with the arguable exception of the judges in each state, state officials are under no obligation to execute an affirmative federal command issued to them. They cannot be ordered to accept federal funds or to establish an exchange. The ACA illustrates the salutary force of this constitutional precept: grand federal schemes gang aft agley. The next big illustration could and hopefully will be the regulation of greenhouse gases under section 111(d) of the Clean Air Act (CAA), coming very soon in this theater.

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September 11, 2014|cooperative federalism, Federalism, Redistribution, transfer payments

Federalism, Yet Again: Views From the Citadel

by Michael S. Greve|

Last Fall, the excellent Jim Fleming (Boston University Law School) organized a fun conference on “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.”

Part of the conference was a panel inviting Sotirios A. Barber (Notre Dame) and yours truly to critique each other’s books on federalism—respectively, The Fallacies of States’ Rights (Harvard UP, 2013) and The Upside-Down Constitution (Harvard UP, 2012). Both of us took the assignment quite seriously.

Let’s just say there’s not a lot of common ground; it’s a rather pointed exchange. To my mind, though, the colloquy illustrates the high utility (as well as the entertainment value) of the bilateral critique format, which I think Jim Fleming invented. Kudos.

What struck me on flipping through the essays for purposes of this post is just how much of a game changer the ACA has been, or become.

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July 29, 2014|Anti-Poverty, competitive federalism, cooperative federalism, Paul Ryan, welfare reform

Mired in Dysfunctional Federalism

by Richard M. Reinsch II|

 

It’s no fun being the skunk at the garden party, but amidst the widespread praise of Paul Ryan’s recently announced anti-poverty reforms it appears some criticism is overdue. 

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February 17, 2014|Common Core, cooperative federalism, National Governors Association, No Child Left Behind, Race to the Top, Sandra Stotsky, The Gates Foundation

Common Core Nation

by Sandra Stotsky|

In this discussion I talk with Professor Sandra Stotsky who has emerged as one of the leading critics of the Common Core State Standards Initiative. Stotsky has testified before numerous state legislatures and has written reports and op-eds documenting its deficiencies. Common Core aims to be a national solution to the problems of performance that have dogged education in America. As such, its scope is comprehensive in its attempt to impose education standards, testing requirements, teacher and student evaluations, among other items, on all 50 states. Currently, 45 states have accepted the standards and are implementing curricula around them. But…

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December 5, 2013|Common Core, cooperative federalism, Patrick Deneen, Republicanism

The Republic of the Common Core

by Richard M. Reinsch II|

School House, Clarke County, MI

For those paying attention to the debate over the Common Core education standards (CC), dissent seems to be rising and is moving school board-by-school board, state-by-state, and legislature-by-legislature (link no longer available). This is unsurprising, and, I think, warranted given the opaque process that brought the Common Core standards to your child’s classroom. This can be contrasted with the adoption of state standards like the Massachusetts’s ones—long considered the toughest and most productive—that were adopted in the early 90’s after much public debate and revision, with input from a number of sources. The CC was designed as a nationalized curriculum, literally generated by “experts,” sans public comment and revision, and accepted by the states under the well-worn bargain of cooperative federalism contained in Obama’s Race to the Top education program.

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January 26, 2012|cooperative federalism, fiscal federalism, local debt, Mitch Daniels, state debt, State of the Union

The Debt Trap, Part (1)

by Michael S. Greve|

President Obama didn’t discuss the nation’s massive, swelling debt in his State of the Union address. Mitch Daniels did, and good for him: the flood of red ink really is the Niagara. Our accelerating drift toard the cliff, moreover, entails not only fiscal and economic but also institutional and constitutional consequences of grave import. State and local debts are a comparatively small tributary to the great stream, but they illustrate the point.

State and local debts are composed of about upwards of $4 trillion in unfunded pension obligations; upwards of a half-trillion in other pension benefit obligations (mostly for health benefits), also unfunded; and about $2.9 trillion in municipal (state and local) bonds. These debts will not be paid (at least not in real dollars), because they cannot be paid. The question is how and to whom our federal system is going to administer the haircut—and what changes it is likely to undergo in the process.

Today’s post deals with the background causes and conditions of state debt; tomorrow’s, with federal bailouts; Monday’s, with fiscal federalism’s future. (It’s not the EU. It’s Argentina.)

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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