Federalism
Conservation Commandeering Is Still Commandeering
Courts allow litigants to commandeer state and local governments under the Endangered Species Act.
Clarence Thomas Explains Why the Commerce Clause Cannot Justify Federal Bans on Gun Possession
Even under the Supreme Court's highly elastic understanding of that clause, Thomas says, such laws do not qualify as regulation of interstate commerce.
Two Potential Upcoming Canadian Secession Referenda and the Broader Issues they Raise
Two Canadian provinces - Alberta and Quebec - may hold secession referenda in the near future. The issues at stake have broader implications for the morality of secession and other matters.
Gordon-Darby Prepares to Renew Effort to Commandeer New Hampshire in Order to Maintain Emissions Testing Contract
Since it lost its first case on technical procedural grounds, the company plans to try again.
Is the Endangered Species Act Being Used to Commandeer State Governments?
A webinar discussion of whether we are seeing conservation commandeering.
For America's 250th Birthday, Give Us the Gift of Renewed Federalism
The country should rediscover its decentralized roots to revive freedom and national pride.
A State Assault Case Against an ICE Agent Could Illustrate the Limits of Supremacy Clause Immunity
That defense applies only when an officer "reasonably" believed he was acting within his federal authority.
First Circuit Stays Court Order Commandeering New Hampshire (Though Doesn't Rely on Anti-Commandeering Arguments)
The appellate court rightly concludes that Gordon-Darby's lawsuit had multiple legal problems.
The Self-Driving Car Fight in Congress Isn't Really About Safety at All
Bootleggers, Baptists, and the fight over who gets to write America's self-driving car rules.
California Law Generally Requiring Federal Law Enforcement Officers to Display ID Violates Supremacy Clause
So the Ninth Circuit held yesterday.
A Rare SCOTUS Case That Pitted Thomas Against Alito
Plus: Does Trump expect to lose the birthright citizenship case?
Sixth Circuit Upholds Federal Law Banning Home Alcohol Distilleries, Creating a Circuit Split
The decision is at odds with a recent ruling by the Fifth Circuit.
Will the Eleventh Circuit Allow the Endangered Species Act to Commandeer the Florida Department of Environmental Protection?
A pending case will test whether courts are willing to enforce the anticommandeering doctrine in the context of environmental protection.
Fifth Circuit Strikes Down Federal Law Banning Home Alcohol Distilleries
The ruling holds the law exceeds Congress' authority under the tax power and the Necessary and Proper Clause. But it does not consider the Commerce Clause.
Maine Bill Proves States Are Capable of Adopting Bad Data Center Policies Without Federal Intervention
A week after Bernie Sanders introduced legislation to pause AI data center construction indefinitely, Maine is poised to institute the first statewide ban.
Trump Just Released a Framework To Govern AI. Here Are 7 Key Takeaways.
The National AI Policy Framework is a return to the administration's pro-AI position.
Previewing Suncor Energy v. Boulder County
A Federalist Society forum on the first big case of OT 2026.
Confusion about Commandeering
Whether the issue is immigration enforcement or environmental law, states are not obligated to enforce federal laws.
The Unconstitutional Commandeering of New Hampshire Continues
Judge McCafferty refuses to stay her unconstitutional injunction, and it appears the state AG's office is still failing to raise its strongest constitutional defense.
Climate Change Goes Back to the Supreme Court -- Colorado Edition
The Supreme Court granted certiorari in Suncor Energy v. County Commissioners of Boulder County
My New Dispatch Article, "In Defense of Sanctuary Cities"
It explains how sanctuary policies are justified on both constitutional and moral grounds.
Lessons of the End of Trump's ICE "Surge" in Minnesota
A combination of legal action and political resistance helped deal Trump a defeat.
Donald Trump Makes the Case for Decentralized Control of Elections Great Again
Trump's call to "nationalize elections" leads prominent election law scholar Rick Hasen to reverse his longstanding support for such a policy.
Trump Wants To 'Take Over' State Elections
It's a bad idea, just like it was a bad idea five years ago when Democrats proposed something similar.
Does the ICE Crackdown in Minnesota Violate the Tenth Amendment?
Although a federal judge declined to issue a preliminary injunction requested by Minnesota and the Twin Cities, the plaintiffs should still prevail on their claims that the federal government’s actions there are unconstitutional.
Federal District Court Judge Rejects Minnesota's Anti-Commandeering Arguments Against DHS "Operation Metro Surge" (and with Good Reason)
There may be lots of things wrong with the way the Trump Administration is handling immigration enforcement in Minneapolis, but commandeering is not among them.
Private Suit Commandeers New Hampshire Government to Maintain Vehicle Emission Inspections
The "Live Free or Die" state effectively acquiesces to unconstitutional commandeering of the state government under the Clean Air Act.
My New Lawfare Article on "Minnesota's Compelling Tenth Amendment Case Against Trump's ICE Surge"
The article describes the suit, and explains why it deserves to prevail.
Trump Says States Are Required To Enforce Federal Immigration Laws. He's Wrong.
"The Framers...designed a system in which the State and Federal Governments would exercise concurrent authority over the people," wrote Justice Antonin Scalia.
Trump's Unconstitutional Plan to Withhold all Federal Funding From Sanctuary Cities and States
The plan violates multiple constituitonal provisions and goes against Supreme Court precedent. If somehow allowed to stand, it would gravely imperil federalism and the separation of powers.
Barring Institutional Investors From Buying Homes Won't Make Housing More Affordable - and Would Likely Make Things Worse
There is no evidence that institutional investors increase prices. Barring them from the market could actually exacerbate the housing crisis.
Trump's Plan To Reclassify Marijuana Would Leave Federal Prohibition Essentially Untouched
The main practical benefits would be tax relief for the cannabis industry and fewer barriers to medical research.
Donald Trump Tries To Override State AI Regulations via Executive Order
Only time will tell if the president's order achieves its stated purpose of checking state laws that threaten to stymie innovation.
The Real Villain in Minnesota's $1.5 Billion Fraud Scandal Isn't Somalis—It's the Feds
In America, we judge people according to the content of their character, not the behavior of a narrow minority of their coethnics.
Philip Hamburger on "The Importance of Granting Cert in Canna Provisions v. Bondi"
Columbia Prof. Philip Hamburger urges the Supreme Court to hear this caseand take the opportunity to overturn Gonzales v. Raich.
The Supreme Court Should Hear Case Seeking to Overturn Gonzales v. Raich
Raich is one of the Court's worst federalism decisions, holding that Congress's power to regulate interstate commerce allows it to ban possession of marijuana that never crossed state lines, and was never sold in any market.
Leaving AI Regulation to the States Could Strangle AI
Without federal preemption, a regulatory thicket of state AI laws threatens to slow the technology's development.
Psychoactive Hemp Products Will Be Federally Prohibited in a Year Unless Congress Intervenes
A spending bill approved as part of the package that ended the federal shutdown aims to close a loophole that gave birth to $28 billion industry.
US News and World Report Article Urging Colleges to Reject Trump's "Compact" With Higher Education
I coauthored the article with four other legal scholars from across the political spectrum.
This Gun Case Harks Back to Constitutional Concerns About the Limits of Federal Power That Now Seem Quaint
Congress justified that National Firearms Act of 1934 as a revenue measure—a rationale undermined by the repeal of taxes on suppressors and short-barreled rifles.
Is the Federal Prohibition on Felon Firearm Possession Constitutional?
Judge Willett thinks that some federal statutes have been interpreted and applied in ways that conflict with the notion that the federal government only has limited and enumerated powers.
Why a Trump Appointee Ruled That His National Guard Deployment in Portland Was Illegal
U.S. District Judge Karin Immergut concluded that the president's description of "War ravaged Portland" was "simply untethered to the facts."
Trump Sued—Again—for Unlawful and Unconstitutional Deployment of National Guard
This is the second lawsuit in a week challenging the Trump administration's National Guard deployments absent a qualifying emergency.
Oregon Sues Trump Administration Over 'Unlawful' National Guard Federalization
The administration ordered the federalization of 200 Oregon National Guard members for 60 days, citing the same suspect legal authority used to send troops to California earlier this year.
The 9th Circuit Overturns a Man's Conviction for Holding a Shotgun on the Sidewalk in Front of His House
The decision, which hinges on an exception to the Gun-Free School Zones Act, does not say whether that law is consistent with the Second Amendment.
Federal Court Rules Trump Can't Deny Federal Disaster Relief Funds to Sanctuary States
Another in a long line of court decisions striking down Trump efforts to attach conditions to federal grants that were not approved by Congress.
