The Federalism Project

American Enterprise Institute

2002-2003 Term

For the Federalism Project's overview, click here.

Does California's Regulation of Milk Burden Interstate Commerce?

Hillside Dairy v. Lyons No. 01-950 and Ponderosa Dairy v. Lyons 01-1018

Civil Rights and Federalism

Should Courts Analyze Voter Intent as a Way to Determine the Intent of City Officials?

Fair Housing Rules, Meet the Referendum Process

Cuyahoga Falls v. Buckeye Community Hope Foundation

No. 01-1269

  Is the Family Leave Provision of the FMLA Valid Section 5 Legislation?

Nevada Department of Human Resources v. Hibbs No. 01-1368

Are State Sodomy Prohibitions Unconstitutional?

Lawrence v. Texas No. 02-0102


Preemption of State and Local Powers

Can California Regulate European Insurance Companies?

American Insurance Association v. Garamendi
No. 02-722

Held: California's Holocaust Victims Insurance Relief Act of 1999 interferes with the Presidentís conduct of the Nation's foreign policy and is therefore preempted


 The most important preemption cases of the current term arise over state tort law rather than state legislation. That reflects the fact that tort actions, not statutes, now generate the most serious state impositions on interstate commerce and on sister states. Nationwide class actions and arbitrary punitive damage awards, often in a handful of plaintiff-friendly state courts, provide the most familiar illustration.

Silence is Golden, but does it Preempt State Tort Actions?

Sprietsma v. Mercury Marine No. 01-706

Federalism and Drug Pricing

Pharmaceutical Research v. Walsh
No. 01-88

At issue: a First Circuit opinion upholding Maine's price curb program for prescription drugs.  Under the "Rx Program," participants enroll, get a membership card, and receive discounts on their prescriptions.  The discount is offered by pharmacies and reimbursed by the state from a "rebate fund" collected from participating drug manufacturers. Manufacturers who choose not to contribute are punished by the state: they are "outed" to doctors and the public and, more damningly, face obstacles in distributing their drugs to Medicaid beneficiaries.

The First Circuit ruled, in May, that Maine's use of Medicaid-as-leverage is not preempted by federal Medicaid law. As Judge Bownes explains, state police powers are not superceded unless that is Congress' clear and manifest intent, and "we perceive no conflict between the Maine Act and Medicaid's structure and purpose."  As for the dormant Commerce Clause, the court found the program non-discriminatory and without impermissible extraterritorial reach.  Since the program is evenhanded and only has incidental effects on interstate commerce, said the Court, it is subject to a low level of Commerce Clause scrutiny.

The Supremes seconded the opinion. The Justices brushed dormant commerce clause questions aside, and found nothing in the Medicaid statute that precludes Maine's regulations (prior authorization may be a big club to wield, but the federal statute expressly permits it). Besides, to paraphrase Justice Stevens, if the Administration doesn't like this bit of state experimentation it has the power to change it. 

opinion here

Pharma's "backgrounder"--Why the Maine law is unconstitutional

General Federalism

Did Congress go Beyond its Enumerated Power in Extending Copyright Protections?

Eldred v Ashcroft

  Privilege for Safety Information Compiled by State/Local Governments  

Pierce County v. Guillen
No. 01-0229

Are Anti-Abortion Protesters Subject to the Hobbs Act?

Scheidler v. NOW 01-1118

Are Nevada Courts Compelled to Respect Sister State Immunity in a Case brought in Nevada Courts under Nevada Law?

 California Franchise Tax Board v. Hyatt No. 02-0042

2003 Term

2000 Term


Selected issues are highlighted in selected cases; neither the list nor the summaries are intended to be comprehensive