THE AMERICAN PRESENT IS AT ODDS with representations of the American past. The American present witnesses the steady aggrandizement of executive, administrative, emergency, penal, military, and war powers as contemporary commentators such as Michael Hardt, Antonio Negri, and Giorgio Agamben contemplate the contours of American hegemony and superpower in a new era of empire.1 The global impact of present American politics, political economy, and foreign policy is obvious to any casual observer of current affairs. The story of the American past, on the other hand, continues to be told in narratives that seem to be heading off somewhere else. In place of the growth of power, the history that America most frequently tells itself highlights a story of relative powerlessness-a usually benign tale of legal-political self-abnegation, emphasizing constitutional restraints such as federalism, checks and balances, the separation of powers, limited government, the rule of law, and laissezfaire. When presented more positively, American history is usually framed as a quest for freedom-the struggle for political liberty, emancipation from bondage, the rise of civil, economic, and social rights. Property, contract, and freedom of speech, press, and association form the constitutional backbone of a free market, a vigorous civil society, and a democratic polity-hallmarks of a free people. Oddly, key elements of this tale are kept alive in both older political histories of the liberal tradition in America and newer histories highlighting the rights and agency of particular cultural communities. Coming to terms with the historical rise of the mechanisms of legal, political, economic, corporate, and technological power that currently shape so much of the globe is thus a more difficult task than it should be. A true philosophical and political history of the American present continues to elude historians.2

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The Myth of the “Weak” American State

Polycentric theory, as applied to sustainability policy adoption, contends that municipalities will act independently to provide public services that protect the environment. Our multilevel regression analysis of survey responses from 1,497 municipalities across the United States challenges that notion. We find that internal drivers of municipal action are insufficient. Lower policy adoption is explained by capacity constraints. More policy making occurs in states with a multilevel governance framework supportive of local sustainability action. Contrary to Fischel’s homevoter hypothesis, we find large cities and rural areas show higher levels of adoption than suburbs (possibly due to free riding within a metropolitan region).

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Cities and Sustainability Polycentric Action and Multilevel Governance

Public engagement is an umbrella term that encompasses numerous methods for bringing people together to address issues of public importance. In this article, we focus on direct public engagement in...

Direct Public Engagement in Local Government

Medicaid is the single largest public health insurer in the United States, covering upwards of 70 million Americans. Crucially, Medicaid is also an intergovernmental program that yokes poverty to federalism: the federal government determines its broad contours, while states have tremendous discretion over how Medicaid is designed and implemented. Where some locales are generous and open handed, others are tight-fisted and punitive. In Fragmented Democracy, Jamila Michener demonstrates the consequences of such disparities for democratic citizenship. Unpacking how federalism transforms Medicaid beneficiaries' interpretations of government and structures their participation in politics, the book examines American democracy from the vantage point(s) of those who are living in or near poverty, (disproportionately) Black or Latino, and reliant on a federated government for vital resources.

Fragmented Democracy: Medicaid, Federalism, and Unequal Politics

This review article explores some of the key concepts, trends, and approaches in contemporary urban governance research. Based on a horizon scan of recent literature and a survey of local governmen...

https://www.tandfonline.com/doi/pdf/10.1080/07352166.2018.1499416

New urban governance: a review of current themes and future priorities

=s1Introduction@ Modern administrative law emerged in response to a now foundational governmental practice: the delegation of broad lawmaking power to administrative agencies. Many, if not most, of the leading questions in the field address this innovation. How can such a delegation be legitimated? How can it be confined? How can it be regularized? These questions contemplate a particular type of delegation---namely, the broad delegation of the power to specify the law, through rules or decisions, where Congress has left it open-ended. At least since the New Deal, this delegation of highly discretionary regulatory power, to be exercised in an open-ended fashion, has been the archetypical form of delegation. It is not the mere power to “fill up the details” that Congress left unspecified in a policy that it otherwise clearly established. It is the power to make the policy that Congress self-consciously chose not to make. The assumption--stated in its classic form in James Landis’s The Administrative Process---has long been that no practicable alternative to such administrative policymaking exists in a world as complex as our own. This Article seeks to shift attention to a different form of delegation of broad policymaking power that is becoming increasingly important but that is presently underappreciated. This form does not give agencies the broad, discretionary power to make rules when Congress has declined to establish any of its own. Instead, it gives agencies the broad, discretionary power to determine whether the rule or rules that Congress has established should be dispensed with. It is the delegation, in other words, of

In Defense of Big Waiver

The community economic development movement: a metropolitan perspective

DAVID BARRON [*] I INTRODUCTION May a President refuse, on constitutional grounds, to enforce a statute that requires the firing of all HIV-positive military personnel? May a President rely upon the Fifth Amendment to bar federal prosecutors from using unwarned statements notwithstanding a federal statute that expressly validates their use? May a President invoke a constitutional norm of equality to decline to enforce a provision requiring the adoption of differential business regulations for similar professions that he "knows" to be the product of nothing more than special interest dealing? There is a tendency among those sympathetic to the Supreme Court's rights-protecting role to be wary of an affirmative answer to such questions. There is lurking in the background a concern that the vigorous assertion of a President's independent authority to interpret the Constitution will be destructive of the rule of law, a concern that once the Supreme Court's preeminence as constitutional adjudicator is called into question, judicially enforceable individual rights will be called into doubt. For that reason, it is perhaps not surprising that the Clinton Administration, eager to disassociate itself from its predecessors' grander claims to independent presidential interpretive authority, [1] has approached with delicacy the question of the scope of the non-enforcement power. The Clinton Administration did not, it must be said, swing so far in the other direction that it disavowed the non-enforcement authority entirely. It rejected the position of those who contend that the executive's obligation to take care that the laws be faithfully executed deprives the President of the power to decline to enforce a statute on constitutional grounds and makes the veto power the sole means by which the President may give tangible effect to his independent constitutional views. [2] Neither was the Administration willing to join, however, with those who suggest that the President's obligation to take care that the laws, of which the Constitution is the supreme one, be faithfully executed leaves the President no choice but to decline to enforce a statute whenever he believes it to be unconstitutional. [3] Instead, the Clinton Administration's Office of Legal Counsel issued an important, nuanced opinion on the scope of the non-enforcement power. The opinion attempts to be respectful of the Supreme Court's "special role" in the constitutional structure, even as it is hospitable to the exercise of the executive's discretion to refuse to enforce a statute on constitutional grounds. [4] The opinion attempts to perform this feat by arguing as follows. Insofar as the President intends to be a faithful constitutional actor, he may exercise the non-enforcement power. The power should generally be exercised, however, in a manner that ensures that the ultimate resolution of a statute's constitutionality will be consistent with the resolution that the Supreme Court would reach if it were presented with the question in a justiciable controversy. The President may decline to enforce a statute, the opinion therefore concludes, when it is "probable" that the Supreme Court would vindicate his independent constitutional judgme nt. [5] Even then, however, the President should generally enforce statutes he believes to be unconstitutional in order to render justiciable constitutional questions that the exercise of the non-enforcement power would otherwise insulate from judicial review. [6] For in many cases, there will be no injury sufficient to support a court challenge unless the President enforces the statute. In her thoughtful contribution to this symposium, Professor Johnsen elaborates on this court-centered approach to presidential non-enforcement. [7] She agrees that a President should generally enforce statutes that he believes to be unconstitutional. She adopts this view in significant respects because of the importance of ensuring that constitutional disputes between the branches are made justiciable. …

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Constitutionalism in the Shadow of Doctrine: The President’s Non-Enforcement Power

This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Francisco's disregard of California's marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions. A UT HO R. Professor of Law, Harvard University. I would like to thank Sam Bagenstos, Jerome Barron, Richard Fallon, Jerry Frog, Heather Gerken, Jack Goldsmith, Marty Lederman, Dan Meltzer, Martha Minow, Richard Schragger, and Larry Tribe for extremely helpful comments, and Ashley Aull for outstanding research assistance. Thanks as well to the participants in the faculty workshops at the George Washington University Law School and Boston University and also to the participants in the symposium at Yale Law School. Imaged with the Permission of Yale Law Journal

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David J. Barron

Papers

In Defense of Big Waiver

The community economic development movement: a metropolitan perspective

Constitutionalism in the Shadow of Doctrine: The President’s Non-Enforcement Power

Why (and When) Cities Have a Stake in Enforcing the Constitution

Boston Bound: A Comparison of Boston's Legal Powers with Those of Six Other Major American Cities