Border Protection Clause in Constitution
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Congressional Retraction of Federal Court Jurisdiction to Protect the Reserved Powers of the States: the Helms Prayer Bill and a Return to First Principles
View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Villanova University School of Law: Digital Repository Volume 27 Issue 5 Article 7 1982 Congressional Retraction of Federal Court Jurisdiction to Protect the Reserved Powers of the States: The Helms Prayer Bill and a Return to First Principles James McClellan Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation James McClellan, Congressional Retraction of Federal Court Jurisdiction to Protect the Reserved Powers of the States: The Helms Prayer Bill and a Return to First Principles, 27 Vill. L. Rev. 1019 (1982). Available at: https://digitalcommons.law.villanova.edu/vlr/vol27/iss5/7 This Symposia is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. McClellan: Congressional Retraction of Federal Court Jurisdiction to Protect 1981-82] CONGRESSIONAL RETRACTION OF FEDERAL COURT JURISDICTION TO PROTECT THE RESERVED POWERS OF THE STATES: THE HELMS PRAYER BILL AND A RETURN TO FIRST PRINCIPLES JAMES MCCLELLAN t S INCE THE EARLIEST DAYS OF THE WARREN COURT, countless bills have been introduced in Congress which would deny the federal courts jurisdiction over a great variety of subjects ranging from busing to abortion.' The exceptions clause of article III of the Constitution provides Congress with the authority to enact such bills. 2 While none of these proposed bills has been enacted into law, it is noteworthy that two have passed at least one house of Congress, and that both of these have sought to deny all federal courts, including the Supreme Court, jurisdiction over certain cases arising under the fourteenth amendment. -
Three Federalisms Randy E
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2007 Three Federalisms Randy E. Barnett Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/fwps_papers/23 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/fwps_papers THREE FEDERALISMS RANDY E. BARNETT* ABSTRACT: Debates over the importance of “federalism” are often obscured by the fact that there are not one, but three distinct versions of constitutional federalism that have arisen since the Founding: Enumerated Powers Federalism in the Founding era, Fundamental Rights Federalism in the Reconstruction era, and Affirmative State Sovereignty Federalism in the post-New Deal era. In this very short essay, my objective is to reduce confusion about federalism by defining and identifying the origin of each of these different conceptions of federalism. I also suggest that, while Fundamental Rights Federalism significantly qualified Enumerated Powers Federalism, it was not until the New Deal’s expansion of federal power that Enumerated Powers Federalism was eviscerated altogether. To preserve some semblance of state discretionary power in the post-New Deal era, the Rehnquist Court developed an ahistorical Affirmative State Sovereignty Federalism that was both under- and over-inclusive of the role of federalism that is warranted by the original meaning of the Constitution as amended. In my remarks this morning, I want to explain how there are, not one, but three distinct versions of federalism that have developed since the Founding. -
Federal Ownership of Land in Oregon and Other States West of the Mississippi
Federal Ownership of Land in Oregon and Other States West of the Mississippi Susan Lea Smith Professor of Law Willamette University January 22, 2016 This analysis responds to the request of the Legal Counsel of the Association of Oregon Counties that I share my opinion about the validity of legal arguments made by Ms. Kris Anne Hall1 concerning the ownership and control of property by the federal government in Harney County, Oregon (namely Malheur Wildlife Refuge). My opinion is based on several decades of experience as a natural resources lawyer who litigated these and related issues, and more recently as a legal scholar who has studied and published on such matters. 2 I have taught natural resources law, including public land law, in Oregon at Willamette University College of Law for the past 26 years. I have also taught Water Law, Federal Constitutional Law, Administrative Law, and State and Local Government Law. Ms. Hall takes the position that the federal government is prohibited by the United States Constitution from owning land within states, other than federal enclaves created with the consent of the states. Ms. Hall adamantly argues that the Enclave Clause itself limits the United States to owning enclave property.3 She also argues that the Property Clause powers only apply to Territories, and that the US holds such property in trust until the Territories become states, at which time the US can no longer own property except pursuant to the Enclave Clause. 4 Ms. Hall asserts that “the Equal Footing doctrine” supports her argument. Ms. Hall primarily relies on an approach to Constitutional interpretation called “textualism.” She maintains that the Constitution can be understood simply by reading the text, without any detailed knowledge of the history and context of its formulation and without taking into account how the Constitution has been authoritatively interpreted by federal courts over the past two centuries. -
History SS Federalism Today Complex Project
Item Name: Federalism Today Item Type: Complex Project Subject and/or U.S. Government/Civics, Grade 11-12 Course: CCSS.ELA-LITERACY.RH.11-12.1 Cite specific textual evidence to support analysis of primary and secondary sources… CCSS.ELA-LITERACY.RH.11-12.9 Compare and contrast treatments of the same topic in several primary and secondary sources… Common Core CCSS.ELA-Literacy.WHST.11-12.1 Write arguments focused on discipline-specific content…. Standards: CCSS.ELA-Literacy.WHST.11-12.7 Conduct short as well as more sustained research projects to answer a question… CCSS.ELA-Literacy.WHST.11-12.8 Gather relevant information from multiple authoritative print and digital sources… Published by Summit Public Schools (some modifications Developer/Source: made.) Administration: Curriculum-embedded Length of time for response: Multiple weeks Item Features: Method of scoring: Analytic Rubric Opportunity for student collaboration: Once a week Opportunity for teacher feedback and revision: Daily Collection of performance assessment items compiled by Overview This learning module will prepare you to write an argument over which level of government, federal or state, should have the authority and power when making and executing laws on controversial issues. You will research an issue of your choice, write an argument in support of your position, and then present it to a panel of judges. Standards AP Standards: APS.SOC.9-12.I Constitutional Underpinnings of United States Government APS.SOC.9-12.I.D - Federalism Objective: Understand the implication(s) -
The Constitution of the State of Texas: an Annotated and Comparative Analysis
THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS PREAMBLE Humbly invoking the blessings of Almighty God. the people of the State of Texas. do ordain and establish this Constitution. History Each Texas State Constitution has been preceded by a brief preamble. Until 1876 the wording was essentially that of 1845 if we subtract the transitional clause (in brackets below) which refers to the admission of Texas to the federal union. The 1845 preamble read: "We The People of the Republic of Texas, acknow- ledging with gratitude the grace and beneficence of God, in permitting us to make choice of our form of government, [do in accordance with the provisions of the Joint Resolutions for annexing Texas to the United States, approved March 1st, one thousand eight hundred and forty-five,] ordain and establish this Constitu- tion." In 1861 the "State" was substituted for "Republic" but thereafter consti- tution makers settled for "people of Texas" until "State" reappeared in the present preamble. Although the 1875 wording differs somewhat from that of earlier preambles the purpose seems to be the same, i.e., a reference or appeal to God. Explanation No Texas cases refer to or construe the preamble. We do know from references to the longer preamble of the United States Constitution that a preamble is not a part of the constitution. Literally it goes before. Hence a preamble cannot be an independent source of power although it may help in the definition and interpre- tation of powers found in the body of the constitution. Chief Justice Marshall used the preamble to the United States Constitution as primary textual proof that, in the federal union, the powers of the national government came not from the states but from the people, the same source which the states acknowledged as the origin of their own governmental powers (McCulloch v. -
Federalism in the Constitution
Federalism in the Constitution As you read each paragraph, answer the questions in the margin. The United States is one country—but it’s also a bunch of states. You When creating the Constitution, what could almost say it’s a group of states that are, well, united. When we things did we need our central created the Articles of Confederation, each state already had its own government to be able to do? government and court system, so the new Americans weren’t exactly running amok. But if the new United States was going to be able to deal with other nations, it needed one government that would speak for the entire country. It also needed one central government to do things like declare war on other countries, keep a military, and negotiate treaties with other countries. There also needed to be federal courts where citizens from different states could resolve their disputes. So, the Founders created the Constitution to do those things. Define federalism. The United States Constitution created a central government known as the federal government. The federal government deals with issues that affect the entire country. Each state also has its own state government that only handles the affairs of that state. This division of power between a central government and state governments is called federalism. The federal government gets all of its power from the Create a Venn Diagram, with labels, that shows Constitution. These federal powers are listed in the the relationship between the federal powers, Constitution. In order to keep the federal government from reserve powers, and concurrent powers. -
IS LESS Philip Hamburger† I. FREE EXERCISE
HAMBURGER.BOOK.DOC 4/13/04 9:44 PM ESSAY MORE IS LESS∗ Philip Hamburger† I. FREE EXERCISE INALIENABLE .................................................... 838 A. The Inalienable Character of Religious Liberty ................. 839 B. The Definition of Religious Liberty..................................... 848 II. BOTH MORE AND LESS ................................................................. 858 A. The Contingency of Free Exercise in the Courts ................ 858 B. Mere Definition Rather than Condition? ............................ 861 C. Historical Explanations......................................................... 864 D. Expansion and Contingency................................................. 869 E. The Absolute Right of Religious Belief ............................... 872 F. Fratricide (or the Periphery Undermines the Core) ........... 874 G. No Harm, No Foul? .............................................................. 882 H. Other Examples..................................................................... 885 CONCLUSION....................................................................................... 890 S the First Amendment’s right of free exercise of religion condi- I tional upon government interests? Many eighteenth-century Americans said it was utterly unconditional. For example, James Madison and numerous contemporaries declared in 1785 that “the right of every man to exercise [‘Religion’] . is in its nature an un- alienable right” and “therefore that in matters of Religion, no mans right is abridged by -
The Case for Searches on Public Transportation
3 THE CASE FOR SEARCHES ON PUBLIC TRANSPORTATION By Jocelyn Waite Attorney Reno, Nevada 2. Focus I. INTRODUCTION The balance of the Introduction presents the histori- cal background and context for the possible need for A. Statement of the Problem transit authorities to conduct searches and briefly ad- dresses the legal background and context: basic Fourth Due to increased concerns about security, transit Amendment3 requirements, particularly the warrant agencies—of their own volition or at the request of fed- and individualized suspicion requirements, and the eral, state, or local governments—may seek to institute exceptions to those requirements. However, the primary search procedures analogous to those done in airports to focus for legal analysis of security screening is on the ensure that explosives, biological weapons, etc., do not exceptions to the warrant and individualized suspicion enter the transit system. While security screenings are requirements. Therefore, the main body of the paper routine in airports, they have to date been rare in the discusses the categories of warrantless searches that 1 transit environment. Given their open nature, their provide likely legal models for analyzing transit high volume of traffic, and the type of trips taken on searches,4 most notably cases involving airport security them, transit systems present a very different security screening and other types of entry screening. After re- environment than airports. These differences give rise viewing the applicable legal authority, the paper pre- -
The Informer)
Department of Homeland Security Federal Law Enforcement Training Centers Office of Chief Counsel Legal Training Division January 2020 THE FEDERAL LAW ENFORCEMENT -INFORMER- A MONTHLY LEGAL RESOURCE AND COMMENTARY FOR LAW ENFORCEMENT OFFICERS AND AGENTS Welcome to this installment of The Federal Law Enforcement Informer (The Informer). The Legal Training Division of the Federal Law Enforcement Training Centers’ Office of Chief Counsel is dedicated to providing law enforcement officers with quality, useful and timely United States Supreme Court and federal Circuit Courts of Appeals reviews, interesting developments in the law, and legal articles written to clarify or highlight various issues. The views expressed in these articles are the opinions of the author and do not necessarily reflect the views of the Federal Law Enforcement Training Centers. The Informer is researched and written by members of the Legal Division. All comments, suggestions, or questions regarding The Informer can be directed to the Editor at [email protected]. You can join The Informer Mailing List, have The Informer delivered directly to you via e-mail, and view copies of the current and past editions and articles in The Quarterly Review and The Informer by visiting https://www.fletc.gov/legal-resources. This edition of The Informer may be cited as 1 INFORMER 20. Get THE INFORMER Free Every Month Click HERE to Subscribe THIS IS A SECURE SERVICE. You will receive mailings from no one except the FLETC Legal Division. The Informer – January 2020 Article: Can a Federal Officer be Prosecuted Under the New California Use of Force Law?............4 Case Summaries Circuit Courts of Appeals Third Circuit United States v. -
Stamped Version US V. Abbott Amicus Br
Case 3:21-cv-00173-KC Document 34-1 Filed 08/12/21 Page 1 of 24 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION UNITED STATES OF AMERICA, Civil Action No. EP-21-cv-173-KC Plaintiff, v. STATE OF TEXAS; and GREG ABBOTT, in his official capacity as Governor of the State of Texas, Defendants. BRIEF AMICUS CURIAE OF CATHOLIC CHARITIES OF THE RIO GRANDE VALLEY Eric C. Rassbach Texas Bar No. 24013375 (admitted pro hac vice) Lori H. Windham (admitted pro hac vice) D.C. Bar No. 501838 The Becket Fund for Religious Liberty 1919 Penn Ave. NW Suite 400 Washington, D.C. 20006 Phone: (202) 955-0095 Fax: (202) 955-0090 [email protected] Attorneys for Amicus Curiae Catholic Charities of the Rio Grande Valley Case 3:21-cv-00173-KC Document 34-1 Filed 08/12/21 Page 2 of 24 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................... iii INTEREST OF THE AMICUS .............................................................................1 INTRODUCTION AND SUMMARY OF ARGUMENT ......................................2 FACTUAL BACKGROUND .................................................................................3 ARGUMENT .........................................................................................................9 I. The Order’s violation of religious liberty is not in the public interest. ......................................................................................... 10 A. The Governor’s Order violates the Free Exercise Clause. ................ 10 1. The Order is not neutral. ............................................................... 11 2. The Order is not generally applicable. ......................................... 12 3. The Order cannot withstand strict scrutiny. ............................... 13 B. Texas has no legitimate interest in violating state law. .................. 15 II. The United States’ Supremacy Clause arguments are also more likely to succeed because they vindicate the First Amendment right to free exercise of religion. -
Supremacy Clause Textualism
Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2010 Supremacy Clause Textualism Henry Paul Monaghan Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Henry P. Monaghan, Supremacy Clause Textualism, 110 COLUM. L. REV. 731 (2010). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/167 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. SUPREMACY CLAUSE TEXTUALISM Henry Paul Monaghan* Whatever its status in the statutory interpretation "wars," originalism- driven textualism has assumed an increasingly prominent role in constitu- tional interpretation,at least within the academy. The focus of this Article is on one such form, namely, "Supremacy Clause textualism",- that is, recent textualist claims about the implications of the Supremacy Clause of Article VI. This Article addresses two such claims. First, in important articles, Professor Bradford Clark argues that the clause is "atthe epicenter of [our] constitutionalstructure" and it "recognizes only the 'Constitution,' 'Laws,' and 'Treaties' of the United States as 'the supreme Law of the Land."' Displacement of otherwise governing state law can occur only through one of those enumerated modes and "Laws" refers only to Acts of Congress. The consequence is that federal common law-as that concept is now currently understood-andadministrative lawmaking are illegitimate, at least when measured by the original understanding. Second, this Article addresses the claims of true Supremacy Clause tex- tualists. -
Constitutional Uncertainties from Presidential Tax Return Release Laws
Releasing the 1040, Not so EZ: Constitutional Uncertainties from Presidential Tax Return Release Laws# Matthew M. Ryan* Introduction ............................................................................................ 209 I. U.S. Term Limits, Inc. v. Thornton ..................................................... 211 II. What is a Qualification? ..................................................................... 212 A. Targeting a Class of Candidates .......................................... 212 B. Impermissibly Barring or Hindering Candidacy .................. 213 III. The Protection of Informational Privacy .......................................... 213 IV. Anti-Corruption Interest: Emoluments Clauses ................................ 216 V. State Power in Presidential Elections ................................................. 217 VI. Slippery Slope .................................................................................. 220 INTRODUCTION On multiple fronts, Americans are pursuing President Trump’s tax returns: a senator through legislation, a district attorney and congressional committees through investigation, and voters through protest and persuasion.1 None have succeeded. DOI: https://doi.org/10.15779/Z38KK94C89. Copyright © 2020 Matthew M. Ryan. # An extended version of this Article can be found in the Hastings Constitutional Law Quarterly. See Matthew M. Ryan, Releasing the 1040, Not so EZ: Constitutional Ambiguities Raised by State Laws Mandating Tax Return Release for Presidential Candidates, 47 HASTINGS CONST.