Vol. 131 No. 1 Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump’s...
Vol. 126 No. 1 Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA’s Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called “individual mandate”) as the conscription of the healthy to subsidize the sick. This conflict over the federal government’s proper role is, of course, not new; it has played out repeatedly over our nation’s past. But rarely since the New Deal has it surfaced in such a distinctly constitutional guise with respect to economic legislation. Instead, after the Supreme Court sustained broad congressional power seventy-plus years ago, little doubt existed that the federal government generally had constitutional authority to regulate private activity if it chose to do so. The Rehnquist Court’s reassertion of limits on congressional power under the Commerce Clause indicated that some measures may go too far. Still, the fight over the federal government’s proper role in the economic sphere has been largely political, not constitutional.
Responding to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009)Response to Federalism and the Generality Problem in Constitutional Interpretation
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Vol. 120 No. 6 Article IV imposes prohibitions on interstate discrimination that are central to our status as a single nation, yet the Constitution also grants Congress broad power over interstate relations. This raises questions with respect to the scope of Congress’s power over interstate relations, what is sometimes referred to as the horizontal dimension of federalism. In particular, does Congress have the power to authorize states to engage in conduct that otherwise would violate Article IV? These questions are of growing practical relevance, given recently enacted or proposed measures – the Defense of Marriage Act (DOMA) being the most prominent example – in which Congress has sanctioned interstate discrimination and other state measures seemingly at odds with fundamental precepts of horizontal federalism. These questions also are significant on a more conceptual level, as they force clarification of the proper relationship between Congress and the Supreme Court in horizontal federalism disputes.