The Compact Clause of the Constitution provides that "[n]o State shall, without the Consent of Congress... enter into any Agreement or Compact with another State, or with a foreign Power." The Supreme Court requires congressional consent only for interstate compacts that attempt to enhance "states power quoad [relative to] the federal government" opening the door to approximately 200 interstate compacts. On this previously recorded conference call, the speakers discuss states’ rights, the issues that arise from interstate compacts, and their impact on federal programs. Featuring Dr. Michael Greve of the American Enterprise Institute and Mr. Nick Dranias of the Center for Constitutional Government at the Goldwater Institute. [Listen now!]

Arizona v. United Statesraises several cutting edge questions about federal preemption of state laws. These questions derive from Arizona’s “mirror image theory” of the case. That is, Arizona argues that its statutes are a mirror image of federal statutes, and therefore that no preemption problem exists. In arguing against that theory, the federal government has voiced what has been unflatteringly called “preemption by executive whim.” That is, that preemption can be created by federal executive branch enforcement (or, non-enforcement) priorities that essentially ignore enforcement of the statutes being mirrored. What do those competing claims mean in preemption analysis where, traditionally, courts have looked to the law as written/established, rather than as enforced? This panel was featured at the Sixth Annual Western Conference on January 28, 2012. Featuring Prof. Gabriel “Jack” Chin of UC Davis School of Law; Prof. John Eastman of Chapman University School of Law; Mr. Joe Sciarrotta, General Counsel to Governor Jan Brewer of Arizona; Prof. Margaret Stock of Lane owell LLC; and The Honorable Edwin Meese of The Heritage Foundation as the moderator. Introduction by Mr. Eugene B. Meyer, President of The Federalist Society.

On November 1, 2011, the Supreme Court heard oral arguments in Minneci v. Pollard, a case that will determine whether employees of government contractors can be held liable for damages for alleged constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and its progeny. Minneci should resolve a circuit split between the Ninth Circuit, which held that employees of government contractors can be held liable under Bivens, and the Fourth, Tenth, and Eleventh Circuits, which held that they could not. In resolving this circuit split, the Supreme Court will need to address a number of questions that have divided lower courts for many years, such as whether employees of governmental contractors are considered federal actors; whether recognition of a Bivens claim is precluded if a plaintiff has alternative remedies, even if those remedies are not congressionally crafted; and how the imposition of asymmetrical liability costs on government contractors impacts availability of a Bivens remedy. [Read more!]

The Federalism & Separation of Powers Practice Group hosted this panel on "Meet the New Boss: Continuity in Presidential War Powers" on Thursday, November 10, 2011, during the 2011 National Lawyers Convention. The panel featured Prof. Martin S. Flaherty of the Leitner Center for International Law and Justice at Fordham Law School; Mr. Andrew C. McCarthy of the National Review Institute; Prof. Michael D. Ramsey of the University of San Diego School of Law; Prof. John C. Yoo of the University of California Berkeley School of Law; and Dr. John C. Eastman of the Center for Constitutional Jurisprudence at Chapman University School of Law as the moderator.