Kathleen S. Callahan , Lisa M. Lindemenn and Barak Y. Orbach (University of Arizona – James E. Rogers College of Law , University of Arizona – James E. Rogers College of Law and University of Arizona) have posted Arming States' Rights (Arizona Law Review, Forthcoming) on SSRN. Here is the abstract:
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This Essay studies the rise of a legislative protest among states: the widespread introduction of almost identical bills that challenge the federal government’s exercise of regulatory power. The regulatory reforms that came in response to the Great Recession energized old objections to regulation, the scope of the Commerce Clause, and ‘big government’ in general. The Essay explores the role of the Firearms Freedom Act movement in arming other Tenth Amendment platforms with a legislative formula for challenging federal laws. The origins of this formula are in a document drafted and promoted by an individual with no formal legal education or official legislative position. State legislators cloned this document and have been using its model to challenge federal regulation in other regulatory domains, with healthcare reform nullification at the forefront. The goal of these Tenth Amendment platforms is to narrow the current scope of the Commerce Clause. This Essay highlights concerns with the cloning technique of the Tea Party’s Tenth Amendment platforms and with bills drafted by interest groups.