State Attorneys General and Federalism Short Course: States Making Policy Suing the Fed

1 credits · Law School

For the last twenty years, an enormous amount of national policy has been made through litigation between and among warring coalitions of states and their political opponents in the federal government. The Affordable Care Act’s individual mandate survived because California v. Texas found in favor of California, not Texas. Student loan forgiveness unraveled because of Biden v. Nebraska. Case captions didn’t used to look like this. National policymaking through federalism litigation is a new phenomenon that has both reshaped substantive law and forced a rethinking of the appropriate roles and responsibilities of states in our federal system. This course explores the causes and effects of the new trend in which states participate in national policymaking through their attorneys general – sometimes more than through their congressional representatives. Students will discuss the trend’s structural origins and doctrinal underpinnings; examine the ways that the trend has changed understandings of vertical and horizontal federalism; and assess whether we need a course correction. The course will include a particular focus on institutional competency and the implications of this new litigation trend on small-d democratic practice. We will be joined by current and former state solicitors general to discuss examples of state-led litigation that changed national policy. Enrollment limited. Pass/Fail. [1]