Piece co-authored with Richard Epstein discusses the federal takeover of state governments
AUSTIN – The Texas Public Policy Foundation’s Senior Fellows Mario Loyola and Richard Epstein, Laurence A. Tisch Professor of Law at New York University, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law (emeritus) at the University of Chicago, co-author the lead article for National Affairs titled Saving Federalism that discusses the federal takeover of state governments.
"The Supreme Court has long insisted that the federal government cannot command states to do anything, but it has allowed the federal government to ‘encourage’ state obedience through ‘cooperative federalism’ programs,” writes Loyola, “A new symposium of progressive Yale law professors now admits what conservatives have been saying for years, that such programs have resulted in a federal takeover of the states. The Supreme Court will hopefully not take long to note that nobody on the right or left takes its federalism doctrines seriously anymore.
“Since the Civil War, the Supreme Court has opened the door to federal control of state governments where exclusive state jurisdiction was most vital, while substantially curtailing federal protection against state abuses where federal protection was most vital. By undermining the constitutional premises of their own cooperative federalism, these ‘National Federalists’ of the Yale Law School may have provided the tipping point that pushes the Supreme Court to revive its crucial role enforcing the boundary between state and federal authority within the checks and balances of our Constitution.”