There is a lot of discussion right now about the use of "reconciliation," a mechanism for enacting legislation to carry out the budget resolution that cannot be filibustered in the Senate, to enable enactment of health care legislation. As part of our New Federal Initiatives Project, we asked Martin Gold, a partner at Covington & Burling and one of the country's leading experts on congressional procedures, for a paper discussing the issues that this raises. The views set out in this paper are his own, not those of the Federalist Society. For a competing take on these issues, see “Reconciliation for Health Care Should Not Be an Issue” by Stanley Collener, a contributing writer for Roll Call who for most of his career worked on budgetary issues.

The Federalist Society's Federalism & Separation of Powers Practice Group hosted this panel discussion on Federalism and the Economic Crisis at the 2009 National Lawyers Convention on Thursday, November 12, 2009. Panelists included Dean John C. Eastman of Chapman University School of Law; Prof. Malcolm M. Feeley of the University of California, Berkeley School of Law, Boalt Hall; Prof. Roderick M. Hills of New York University School of Law; Prof. Ilya Somin of George Mason University School of Law; and Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit as the moderator.

On May 20, 2009, President Obama issued a Memorandum for the heads of executive departments and agencies on preemption.  The purpose of that Memorandum was to declare the new Administration’s “general policy” to be that “preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.”  The President explained that, even though the Federal Government’s role in promoting the general welfare is “critical,” the States play a concurrent and often more aggressive role in protecting the health and safety of their citizens and the environment.  He stated that overreaching by the Federal Government with respect to preemption limits the ability of the States to “apply to themselves rules and principles that reflect the[ir own particular] circumstances and values.”

The questions we will look at today is, is that appropriate? Is that constitutional? Does the need justify the law? And is the need so great that those kinds of actions are necessary? In each case they were enacted, that was the argument: the need was so great that flexibility has to govern the allocation and use of those funds. But are there constitutional lines that we should not cross? We are very privileged to have two distinguished scholars of the Constitution with us here today...