National Association of Attorneys General

National Association of Attorneys General National Association of Attorneys General

2015 Midwestern Region Meeting: Indianapolis

Federalism in an Age of National Power

Federal law regulates many areas of historic state control, but often gives states a major role in implementing the statutory schemes. Is this federalism’s primary domain in the 21st century? Does this “National Federalism” accomplish what the Framers intended when they divided sovereignty between the national and state governments?

Note: No additional materials for this panel.

General Theory of Federalism

A practical assessment of which level of government performs functions best. Which services should be undertaken by the national government? By the states? By local bodies?

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Preemption

Whether a federal statute preempts state law is the federalism issue states most frequently litigate. Where is the preemption doctrine headed? Should federal agencies be permitted to preempt state law? And how can states effectively argue preemption cases in appellate courts?

The Spending Clause

Congress exercises immense power over states by imposing conditions on federal grants. In the 2012 Patient Protection and Affordable Care Act case, the Supreme Court struck down a condition on a federal grant as unduly coercive for the first time since the New Deal era. In the wake of that decision, when can Congress impose conditions on federal grants? Does Congress’ Spending Clause power distort Our Federalism?

Foreign Affairs, Treaties, and Federalism

Foreign affairs is primarily a federal responsibility, but states often take actions that affect other nations. When do state laws impermissibly intrude on the federal government’s foreign affairs powers? When do treaties override state laws? Are there federalism-based limits on Congress’ Treaty Power?

Note: No additional materials for this panel.

Horizontal Federalism: States Regulating States

We traditionally think of federalism as the division of responsibility between the national and state governments. But federalism also has a “horizontal” component, as a limit on when states may regulate activity in other states. Recent litigation over a California law regulating out-of-state egg production and Nebraska and Oklahoma’s lawsuit challenging Colorado’s legalization of marijuana illustrate the issue. When can states act “extraterritorially”?

Federalism and the Environment

Environmental law is the most noteworthy example of cooperative federalism, in which federal law establishes a regime of joint federal-state regulation. How well is federalism operating in the environmental arena? What should the appropriate federal-state balance be?

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Mark Herring, Virginia Attorney General

Mark Herring has been the Virginia attorney general since January 2014. He is responsible for overseeing an office of more than 425 employees.