Controversies in American Federalism and Public Policy

214 Pages·2018·1.257 MB·English

by  Christopher P. Banks (editor)

“This fascinating volume assembles fresh constitutional analyses of the federalism foundations
of nine major policy issues, highlighting partisan and ideological uses of federalism principles
by jurists, federal and state officials, and interest groups to achieve political and policy
objectives in an increasingly polarized era spanning the Nixon to Trump administrations.”
John Kincaid, the Robert B. and Helen S. Meyner Professor of Government
and Public Service and Director of the Meyner Center for the Study of
State and Local Government, Lafayette College, Easton, PA, USA

Controversies in American
Federalism and Public Policy
This interdisciplinary collection presents a scholarly treatment of how the constitutional
politics of federalism affect governments and citizens, offering an accessible yet compre-
hensive analysis of the U.S. Supreme Court’s federalism jurisprudence and its effect on the
development of national and state policies in key areas of constitutional jurisprudence.
The contributors address the impact that Supreme Court federalism precedents have
in setting the parameters of national law and policies that the states are often bound to
respect under constitutional law, including those that relate to the scope and application of
gun rights, LGBT freedoms, health care administration, anti-terrorism initiatives, capital
punishment, immigration and environmental regulation, the legalization of marijuana and
voting rights.
Uniting scholarship in law, political science, criminology, and public administration,
the chapters study the themes, principles, and politics that traditionally have been at the
center of federalism research across different academic disciplines. They look at the origins,
nature and effect of dual and cooperative federalism, presidential powers and administr-
ative regulation, state sovereignty and states’ rights, judicial federalism and the advocacy
of organized interests.
Christopher P. Banks, Kent State University, USA, combines his research and teaching
interests by studying the political behavior of the judiciary, constitutional law, the judicial
process and civil rights and liberties. He has published books and articles relating to
judicial policy-making, federalism, the legal profession, the judicial process, human rights,
American politics, terrorism, Bush v. Gore (2000), the politics of court reform and the judicial
politics of the DC circuit.
Controversies in American Constitutional Law
Series Editors: Jon Yorke and Anne Richardson Oakes
Centre for American Legal Studies, School of Law, Birmingham City University, UK
Controversies in American Constitutional Law presents and engages with the contemporary
developments and policies which mould and challenge US constitutional law and practice.
It deals with the full spectrum of constitutional issues, publishing work by scholars from a
range of disciplines who tackle current legal issues by reference to their underlying legal and
political histories and the philosophical perspectives that they represent. Its cross-disciplinary
approach encourages analysis of past, present and future challenges to the idea of US
constitutionalism and the power structures upon which it rests. The series provides a forum
for scholars to challenge the boundaries of US constitutional law and engages with the
continual process of constitutional refinement for the protection of individual rights and
liberties, within an evolving framework of legitimate government.
CALS promotes research, scholarship, and educative programs in all areas of US law and
is the home of the British Journal of American Legal Studies. Faculty members have extensive
experience in submitting amicus curiae briefs to the United States Supreme Court and lower
federal courts and advising on criminal justice issues in many states. CALS coordinates the
largest British law undergraduate internship program to the United States. Through this
program, and members’ research, CALS has created relationships with over 100 partners in
over 25 states. CALS faculty advise public bodies, provide professional training, and speak
at conferences across the USA.
Recent title in this series
Controversies in Equal Protection Cases in America: Race, Gender and Sexual
Orientation
Anne Richardson Oakes
ISBN 978-1-4094-5427-4
Controversies in Tax Law: A Matter of Perspective
Edited by Anthony C. Infanti
ISBN 978-1-4724-1492-2
Controversies in Innocence Cases in America
Edited by Sarah Lucy Cooper
ISBN 978-1-4094-6354-2
https://www.routledge.com/Controversies-in-American-Constitutional-Law/book-
series/CONTROVERSIES
Controversies in American
Federalism and Public Policy
Edited by Christopher P. Banks
First published 2018
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2018 selection and editorial matter, Christopher P. Banks; individual
chapters, the contributors
The right of Christopher P. Banks to be identified as the author of the
editorial material, and of the authors for their individual chapters, has
been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
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Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and explanation
without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Banks, Christopher P., editor.
Title: Controversies in American federalism and public policy / edited by
Christopher P. Banks.
Description: New York, NY : Routledge, 2018. |
Series: Controversies in american constitutional law | Includes
bibliographical references and index.
Identifiers: LCCN 2017048639| ISBN 9781138036659 (hardback) |
ISBN 9781138036642 (pbk.)
Subjects: LCSH: Federal-state controversies—United States. | Federal
government—United States. | Political planning—United States. | State
governments—United States. | United States. Supreme Court.
Classification: LCC KF4612 .C66 2018 | DDC 342.73/042—dc23
LC record available at https://lccn.loc.gov/2017048639
ISBN: 978-1-138-03665-9 (hbk)
ISBN: 978-1-138-03664-2 (pbk)
ISBN: 978-1-315-17844-8 (ebk)
Typeset in Galliard
by Keystroke, Neville Lodge, Tettenhall, Wolverhampton
Contents
Notes on contributors ix
Acknowledgments xiii
1 The U.S. Supreme Court, new federalism, and public policy 1
JOHN C. BLAKEMAN AND CHRISTOPHER P. BANKS
2 The right to keep and bear arms in the Roberts Court 18
NELSON LUND
3 National security and anti-terrorism policies: The federalism
implications of Trump’s travel ban 35
CHRISTOPHER P. BANKS
4 Capital punishment and federalism: International obligations and
domestic standards 55
MARY WELEK ATWELL
5 The Supreme Court and the Affordable Care Act: The consequences
of the NFIB v. Sebelius decision for health care policy 75
JOHN DINAN
6 Federalism, marriage equality, and LGBT rights 93
NANCY J. KNAUER
7 The legalization of marijuana and the interplay of federal and
state laws 114
SAM KAMIN
8 The firm constitutional foundation and shaky political future
of environmental cooperative federalism 132
ROBERT L. GLICKSMAN
viii Contents
9 Immigration federalism 151
PRATHEEPAN GULASEKARAM
10 The equal sovereignty principle as federalism sub-doctrine:
A reassessment of Shelby County v. Holder 171
FRANITA TOLSON
11 Concluding thoughts 187
CHRISTOPHER P. BANKS
Index 193
Contributors
Christopher P. Banks is a Professor of Political Science at Kent State University. He has a
law degree and earned his PhD at the University of Virginia. Before receiving his doctorate
in American politics from the University of Virginia in 1995, he practiced law in civil and
criminal litigation in Connecticut and was active in local and state politics. He is the
author of The American Legal Profession: Myths and Realities (Sage/CQ Press, 2017) and
Judicial Politics in the D.C. Circuit Court (John Hopkins University Press, 1999); the
co-author of The Judicial Process: Law, Courts, and Judicial Politics (Sage/CQ Press
2015), The U.S. Supreme Court and New Federalism: From the Rehnquist to the Roberts
Court (Rowman & Littlefield, 2012) and Courts and Judicial Policymaking (Prentice
Hall, 2008); editor and chapter contributor of The State and Federal Courts: A Complete
Guide to History, Powers, and Controversy (ABC-CLIO, 2017); and co-editor and chapter
contributor of The Final Arbiter: The Consequences of Bush v. Gore for Law and Politics
(State University of New York Press, 2005) and Superintending Democracy: The Courts
and the Political Process (University of Akron Press, 2001). He has published numerous
book chapters, book reviews, and journal articles on U.S. Supreme Court politics, judicial
behavior, law and politics, federalism, terrorism, and human rights.
John C. Blakeman is the Eugene Katz Distinguished Faculty, professor, and chair of
the political science department at the University of Wisconsin–Stevens Point. He is the
author The Bible in the Park: Federal District Courts, Religious Speech, and the Public
Forum, and co-author of The U.S. Supreme Court and New Federalism, and The American
Constitutional Experience. He is the author of several journal articles and book chapters
on religious liberty, religion ad politics, federalism, and terrorism. He regularly teaches
courses on American constitutional law, the First Amendment, American political thought,
and religion and politics.
Nelson Lund is University Professor at George Mason University’s Antonin Scalia Law
School. A graduate of St. John’s College in Annapolis, Maryland, he holds advanced
degrees in philosophy from the Catholic University of America (M.A. 1978), and in
political science from Harvard University (A.M. 1979; Ph.D. 1981). He received his law
degree in 1985 from the University of Chicago, where he was executive editor of
the University of Chicago Law Review and chapter president of the Federalist Society for
Law and Public Policy.
Professor Lund served as a law clerk for the Honorable Patrick E. Higginbotham of
the United States Court of Appeals for the Fifth Circuit (1985–1986) and for the
Honorable Sandra Day O’Connor of the United States Supreme Court (O.T. 1987). In
addition to experience in the United States Department of Justice at the Office of the