Proactive States and a Dormant Federal Government: Do State Energy Regulations Violate and the Dormant Commerce Clause?

Posted By: Nicholas Ward, William Weber, Andrew Wenker, Alicia Wheeler, Evan Woodham, Chang Wu, and Brian Yee

coal-fired-power-plant-499908_960_720Introduction

In the absence of effective Congressional action addressing global warming and climate change, states have chosen to take matters into their own hands by enacting regulatory measures. State regulatory regimes are designed to create less carbon-dependent energy production by forcing energy companies, and sometimes developers, to explore new ways to promote energy conservation, energy efficiency, and use of renewable energy sources. These new state-implemented energy regulations, however, are not without controversy. Some argue that the regulations violate the doctrine of the Dormant Commerce Clause due to the national, and interstate nature of the country’s energy grid. When considering current state regulations light of the origin and development of the Dormant Commerce Clause, state regulatory measures do not violate the Dormant Commerce Clause so long as the benefits of the regulation outweigh any substantial burden on interstate commerce and are non-facially discriminatory in nature.
Continue reading “Proactive States and a Dormant Federal Government: Do State Energy Regulations Violate and the Dormant Commerce Clause?”

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Proactive States and a Dormant Federal Government: Do State Energy Regulations Violate and the Dormant Commerce Clause?

“Trump”-ing the Constitution?

Posted by: Travis Patch, Matt Paulbeck, Christina Price, Andrea Prigmore, Kunal Patel, Martin Presley, Jennifer Piatt, and Lauren Podgorski

image1As we approach the 2016 Presidential Election, many candidates are making promises about what they will do if elected into office. One such promise was made in a political speech on December 11, 2015, where Donald J. Trump was endorsed by the New York Police Benevolent Association.

Trump said:

One of the first things I’d do, in terms of executive order, if I win will be to sign a strong, strong statement that will go out to the country, out to the world, that anybody killing a policeman, policewoman, police officer — anybody killing a police officer — death penalty. It’s going to happen, O.K.?

According to the National Review, an average of 150 police officers are killed each year in the U.S.  Put another way, that is one every fifty-eight hours.  Trump intends this punishment to serve as a deterrent.  However, can Trump fulfill his promise? Likely not! Continue reading ““Trump”-ing the Constitution?”

“Trump”-ing the Constitution?

Adapting Adoption: Birth Certificate Disputes in Post-Obergefell America

Posted By: Jameson Rammell, Ashley Repka, Tyler Respondek, Jesse Ritchey, Jackson Ross, Amy Salamon, and Tyler Sankey

image2Introduction

In June 2015, the Supreme Court issued a landmark decision in Obergefell v. Hodges, recognizing same-sex couples’ fundamental right to marry. The Court found that deprivation of this fundamental right and liberty violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and it further held that all States must recognize same-sex marriages performed in other States. In light of this opinion, various questions have arisen regarding the impact on other, related rights and interests of same-sex couples. Chief among such questions are those involving the structure of same-sex couples’ legal relationships to children for whom they act as parents. Specifically, while most states have issued two-parent same-sex birth certificates following the Obergefell decision, a handful of states (including Arkansas) have refused to do so. Based on the Court’s recognition of the fundamental right to marry, and the inextricable legal link between marriage and parental rights, is this refusal constitutional? Must states permit the names of both parents in a same sex marriage to appear on a birth certificate?

States’ arguments rely primarily on the assertion that birth certificates are biologically-based documents and that same-sex couples retain the option to be listed on the certificate by either obtaining a court order or by going through the formal adoption process. In response, same-sex parents point to the legal, versus biological, basis of “parental presumption” statutes, and argue that any difference in treatment between heterosexual spouses and same-sex spouses under birth certificate statutes amounts to unjust, unconstitutional discrimination based solely on sexual orientation.

Given the Supreme Court’s decision in Obergefell, it is likely that this refusal by States to permit both same-sex parents’ names on birth certificates is unconstitutional. First, we will provide a summary of the Obergefell decision and the relevant legal dispute in Arkansas. Second, we will show that Arkansas’ refusal to include both parents’ names violates rights and liberties rooted in the Due Process Clause and emphasized in Obergefell. Third, we will illustrate that the refusal is unconstitutional under the 14th Amendment’s guarantee of equal protection due to its unequal treatment based on sexual orientation. Fourth, we will refute the argument that the 10th Amendment prevents the federal government from requiring Arkansas to comply with Obergefell. And finally, we will address counterarguments based on First Amendment religious freedom claims. Continue reading “Adapting Adoption: Birth Certificate Disputes in Post-Obergefell America”

Adapting Adoption: Birth Certificate Disputes in Post-Obergefell America

The Constitutionality of a National Sex Offender Registry

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Posted by: Maggie Hoffman, Tyler Holyfield, Bryce Johnson, Dominic Kearns, Brian Kehoe, Eun Hyung Kim

How would you feel if you were legally forced to report to the federal government where you live, how old you are, how tall you are and how much you weigh? What if you were forced to inform the government anytime you moved your residence or switched jobs? What if you learned that the government had published this information for the whole world to see?  These are the requirements the government has placed on sex offenders to report and have published this personal information to comply with the federal requirements of the Sex Offender Registration and Notification Act (SORNA). Continue reading “The Constitutionality of a National Sex Offender Registry”

The Constitutionality of a National Sex Offender Registry

TENSIONS BETWEEN MINORITIES AND POLICE: CONGRESS’ ROLE IN A POST-FERGUSON SOCIETY

Posted by: J. Connor Matthews, Madeline Mayer, Bobby McCormick, Courtney McMinn,Marcus McGillivray, Brandon Millam, & Caitlyn Mitchell.

BlackLivesMatterBlack Lives Matter and Campaign Zero calling for reform within police departments.

On August 9, 2014, a police officer shot Michael Brown, a young African-American male, in Ferguson, Missouri. In the days and weeks that followed, major civil unrest erupted throughout the city. The unrest quickly spread, with violent riots and a wave of mass protests that emerged across the country. The media quickly reported and people learned that the shooting of Michael Brown was not an isolated incident. After strikingly similar incidents in New York, Maryland, and Texas, anti-discrimination movements became prominent, bringing the issue of racial discrimination in policing to the national forefront. As more instances of police brutality against minority citizens took place around the country, large movements like Black Lives Matter surfaced. Their calls for reform focus on the strained relationship between minority communities and law enforcement producing legislative campaigns such as Campaign Zero.

Campaign Zero calls for some of the following reforms: (1) The use of independent counsel during proceedings against police officers accused of police brutality; (2) Community representation, whereby the demographics of the police force better resemble the demographics of the community at-large; and (3) Enhanced freedom in filming police officers. These reforms are just several among many other proposals such as limiting the use of force, enhancing police training, increasing community oversight, and ending broken windows policing (i.e. enforcing crimes that do not affect public safety such as marijuana consumption or loitering). In campaigning for these reforms, the Black Lives Matter movement, through the legislative efforts of Campaign Zero, aims to reduce the tension between minority communities and their police departments. So we’ve asked ourselves, what role can Congress and the federal government play in these reforms that are largely state issues, and what sort of power does the federal government have to enact these legislative reform efforts?

Political challenges may arise with respect to the 10th Amendment and the reserved powers of the states. If Congress attempts to mandate the States in an area that is within the reserved power of the states, the 10th Amendment may prevent legislation from being passed. However, Congress has power and can encourage the states through the Spending Clause of the U.S. Constitution, so long as the funding offered to the states does not coerce them into accepting the funds. Although both the 14th Amendment and the Spending Clause may grant Congress the ability to pass legislation addressing these issues, the issue of state sovereign immunity of the 11th Amendment and the heated political rhetoric surrounding state’s rights may hinder Congress’ ability. Continue reading “TENSIONS BETWEEN MINORITIES AND POLICE: CONGRESS’ ROLE IN A POST-FERGUSON SOCIETY”

TENSIONS BETWEEN MINORITIES AND POLICE: CONGRESS’ ROLE IN A POST-FERGUSON SOCIETY

Unfunded Mandates: An Unconstitutional Burden?

Posted By: Samantha Oswitch, Kate Montgomery, Jose Oliveros, Kelsey Nordahl, Gabriel Oquin, Andrew Moura, Taran Parker

The_Federalist_(1st_ed,_1788,_vol_I,_title_page)INTRODUCTION

Partisan rhetoric has warped our common understanding of the unfunded mandate. By definition, a federal law is not an unfunded mandate simply because the Federal Government wants the states to pay for it. This truth escapes those such as politicians and media pundits who wrongfully characterize certain federally funded laws and programs as unfunded mandates and who categorically denounce them as unconstitutional. An unfunded mandate is a federal statute or regulation which often accompanies a condition for the receipt of federal funds through actions a state or local governments undertake within specific programs where no additional funds to cover the mandated action are provided. The funded component of the statute is authority given by the Spending Clause which is controlled by the anti-coercion doctrine. The anti-commandeering doctrine created in New York v. United States falls under the regulating authority of the Interstate Commerce Clause. The unfunded mandate falls somewhere in the middle. Most rhetoric surrounding unfunded mandates cite New York v. United States (1992) and the Unfunded Mandates Reform Act, 2 USC §1501 (referred subsequently as “UMRA”) as the judicial and political limitations on unfunded mandates. Some opponents of the statute have stated that the Supreme Court decision made the statute unnecessary. However, there has been a long standing belief beginning with the Founders that the state and federal relationship should be decided by the people through the political sphere. Continue reading “Unfunded Mandates: An Unconstitutional Burden?”

Unfunded Mandates: An Unconstitutional Burden?

Framing the Issue of Federal Supremacy: A Journey From the Articles of Confederation to Obamacare

Posted By: Connor Maag, Dane Lystrup, Erik Knapp, Dikranouhi Krikorian, Olen Lenets, Evan Malady, Derick Lysene, Alexander Lindvall

Articles of ConfederationIntroduction

The United States government consists of two separate systems of government: the federal government and the state governments. The Articles of Confederation was the nation’s first attempt at defining the relationship between these two systems, but the Articles led to numerous problems caused by a lack of federal power over the states—a lack of “federal supremacy.” The difficulty of enforcing federal supremacy under the Articles of Confederation was one of the main reasons for calling the 1787 Constitutional Convention, because certain barriers existed in the Articles that made enforcing federal supremacy difficult. The framers of the Constitution thought they found a few solutions to this problem. However, the combined effects of the Supreme Court’s decisions since 1986 on the Tenth Amendment, the Eleventh Amendment, and the ability to use the spending “carrot” discussed in the Medicaid expansion section of National Federation of Independent Business v. Sebelius (The “Obamacare Opinion”)  have narrowed the federal government’s power over the states. Continue reading “Framing the Issue of Federal Supremacy: A Journey From the Articles of Confederation to Obamacare”

Framing the Issue of Federal Supremacy: A Journey From the Articles of Confederation to Obamacare