Federal Power Research Articles

Conservative Innovators: How States Are Challenging Federal Power. By Ben Merriman. Chicago: University of Chicago Press, 2019. Pp. x+239. $105.00 (cloth); $32.50 (paper).

Previous articleNext article No AccessBook ReviewConservative Innovators: How States Are Challenging Federal Power. By Ben Merriman. Chicago: University of Chicago Press, 2019. Pp. x+239. $105.00 (cloth); $32.50 (paper).Adam SlezAdam SlezUniversity of Virginia Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by American Journal of Sociology Volume 126, Number 2September 2020 Article DOIhttps://doi.org/10.1086/710231 Views: 110Total views on this site For permission to reuse a book review printed in the American Journal of Sociology, please contact [email protected]PDF download Crossref reports no articles citing this article.

Conservative Innovators: How States Are Challenging Federal Power

Conservative Innovators: How States Are Challenging Federal Power

The Strategic Ambiguity of the General Welfare Clause

The General Welfare Clause of Article I, section 8, Clause 1 enumerates a power "to provide for the common defense and general welfare." A literal interpretation of this clause ("the general welfare interpretation") would authorize Congress to legislate for any national purpose, and therefore to address all national problems"including the COVID-19 pandemic"in ways that would be precluded under the prevailing understanding of limited enumerated powers. But conventional doctrine rejects the general welfare interpretation and construes the General Welfare Clause to confer the so-called "Spending Power," a power only to spend, but not to regulate, for national purposes. This article argues that both the text and the drafting history of the General Welfare Clause support reading it as a power to regulate on all national problems, such as environmental degradation, violence against women, or the COVID-19 pandemic. It is only our superficial ideological commitment to enumerationism "the doctrine of limited enumerated powers" that causes us to depart from the most evident textual interpretation of the General Welfare Clause. Recovering the lost General Welfare Clause is particularly important at this moment in constitutional history, when a conservative and supposedly originalist Supreme Court is poised to greatly constrict federal power to respond to pressing national problems in service of a tendentious and badly one-sided account of founding-era views on federalism.

A Violência Bioétnica e os Pescadores Artesanais da Baía de Guanabara e a Marinha do Brasil

O artigo retrata questões relacionadas à violência envolvendo pescadores artesanais e a Marinha do Brasil na baía de Guanabara, Rio de Janeiro. O manuscrito examina como essa violência altera o cotidiano desses trabalhadores, pois o cenário em que acontecem as violências é caracterizado pela ocupação do espaço marinho pelo poder federal. Quanto ao enfoque metodológico da pesquisa decidiu-se pela metodologia etnográfica de cunho qualitativo com a participação de 20 pescadores. As ferramentas de coleta de dados foram a observação participante e a entrevista etnográfica. Os resultados da presente pesquisa apontam para diversos casos de pescadores artesanais vitimados por armas de fogo pelos militares da Marinha, por conta da invasão do espaço marinho delimitado pelas normas de segurança dos aquartelamentos militares.

“The Latter-Day General Grant”: Forceful Federal Power and Civil Rights

AbstractProgress toward racial equality requires the engagement of the American state, centered in the presidency and the executive branch, and in fact is not possible without the state's direct and forceful intervention. The key to this transformation is what we call “Forceful Federalism,” a multidimensional understanding of the American state. Forceful Federalism has four essential dimensions: standard-setting, coercion, associationalism, and fiscal authority. These four processes rise and fall over time, each charting its own history and unfolding according to its own logic. These processes usually work against each other. But occasionally they align with each other so that the state can pursue and achieve even difficult and challenging policy aims in a focused way. We sketch the outlines of Forceful Federalism and demonstrate its explanatory power with a case study of Forceful Federalism in action: James Meredith's integration of the University of Mississippi in 1962. The Meredith case exemplifies the convergence of the four dimensions of Forceful Federalism and marks the first time the modern American state was thus mobilized on behalf of civil rights. The case offers suggestive evidence that Forceful Federalism was a necessary condition for the emergence of the Civil Rights State.

Clarifying the Matter: Modernizing Peace, Order, and Good Government in the Greenhouse Gas Pollution Pricing Act Appeals

Few passages in the Canadian Constitution have generated as much debate over the years as the opening words of section 91 of the Constitution Act, 1867 commonly known as the Peace, Order, and Good Government (hereinafter “POGG”) clause. Most of the controversy about POGG centers around how to interpret the clause in a way that allows the federal government to address issues of genuine national concern (that warrant a national response) while respecting provincial autonomy and diversity in our federation. The tensions underpinning POGG were recently revealed in the trio of provincial challenges to the constitutionality of Parliament’s Greenhouse Gas Pollution Pricing Act (GGPPA), in which provinces argued that upholding the GGPPA would have the effect of displacing provincial jurisdiction over GHG emissions. While two of the three Courts of Appeal (Saskatchewan and Ontario) upheld the GGPPA as a matter of national concern under POGG, doing so was apparently a struggle, as they strained against the watertight confines of earlier eras of constitutional interpretation still evident in POGG jurisprudence. Now under appeal to the Supreme Court, this trio of references offers an opportunity for the Court to clarify the contours of POGG in the modern context of flexible, cooperative federalism. In this article, we examine three central tensions that the GGPPA appeals revealed about POGG. First, we consider, and reject, the argument that POGG benefits from a special kind of exclusivity, different from enumerated powers, that has the effect of displacing provincial power. We show that this argument is steeped in the bygone era of watertight compartments and a suggestion that POGG creates an unassailable core, akin to that which underpins the doctrine of interjurisdictional immunity. We explain why this argument is unfounded in the modern era of cooperative federalism. Second, we examine a source of confusion in the GGPPA appeals related to how the word ‘matter’ is used, which we submit contributed to the challenging provinces’ fear that provincial power will be permanent displaced if the legislation is upheld under POGG. Specifically, the challenging provinces argued that upholding the GGPPA would necessarily create a new sub-head of exclusive federal power over a broad subject matter (GHG emissions) that would displace their jurisdiction. We discuss how the word ‘matter’ is used to refer both to the pith and substance of legislation and the possibility of a new sub-head of power that could be recognized for Parliament if the law is upheld. We submit that this terminological confusion fuels the fears about the impact of upholding the legislation under POGG on provinces. Third, and most importantly, we consider the extent to which federal jurisdiction under POGG can peacefully co-exist with related provincial authority. The provincial appeals have revealed that most of the justices – even those that upheld the GGPPA – are operating under an assumption that the double aspect doctrine does not apply to matters justified under POGG. We examine the historical development of the double aspect doctrine to show that there is no basis for this assumption, and suggest the Supreme Court should clarify that the doctrine applies to matters upheld under POGG, just as it would for enumerated powers. We also argue in this paper that the Supreme Court should update the test set out in Crown Zellerbach more than 30 years ago. In the intervening decades, the courts have more fully embraced a flexible interpretation of the division of powers that tolerates more de facto concurrent operation of statutes on similar subject matters. The provincial challenges have revealed the extent to which the Crown Zellerbach test, and specifically the way in which the potential scale of impact on provincial jurisdiction is evaluated, leaves much uncertainty about the level of overlap that can operate. We deconstruct the Crown Zellerbach test and propose a more flexible, nuanced, analytical approach that empowers the federation to address pressing public policy problems such as climate change in a way that respects federalism. Ultimately, the Supreme Court has an opportunity in the GGPPA appeals to interpret POGG in a way that empowers all levels of government in our federation to respond to increasingly pressing, dynamic, multi-dimensional public policy challenges, such as climate change. Our article shows that there is a role for POGG to play in enabling the federal government to be accountable for reducing the country’s overall level of emissions in accordance with international commitments while also allowing the provinces to continue legislating to reduce GHG emissions.

A road paved with good intentions?: FERC’s illegal war on state electricity subsidies

Most initial reviews of FERC’s order have offered scathing criticism of its negative policy consequences. Our critique adds two perspectives not represented thus far in the reaction to FERC’s order. First, we explain how the FERC majority got to the point where it felt compelled to take action against state subsidies and why that judgment, although understandable in some respects, is misguided. FERC’s action follows logically from a flawed policy adopted by a Democratic-majority Commission in 2011. Second, we explain why FERC’s order fails to create a mechanism for a just and reasonable price and violates both the Administrative Procedure Act and Federal Power Act. It is therefore likely to be set aside by a court during the judicial review process.

COVID-19 Stresses United States on Domestic Borders; War Analog Might Foster State Solidarity upon Federal Power

The coronavirus pandemic is stressing not only our healthcare systems, but our political and legal systems. The pandemic has challenged our sense of identity in humankind, pitching us back and forth between a spirit of global solidarity and a competition of human tribes for resources and survival. That tension plays out in our political and legal responses to the pandemic, manifesting the natural human temptation to tribalism in both international and intranational dimensions. As policymakers struggle to respond to the pandemic and to curb the outbreak of COVID-19, I have been struck by the emergence of interstate tensions in the United States. The pressure of the pandemic, aggravated by a slow and uncertain governmental response at the federal level, has been a brusque reminder that the United States are a plural: a federation of states that famously endeavored “to form a more perfect Union,” but that, like human governance itself, remains a work in progress.

Conservative Innovators: How States Are Challenging Federal Power, by Ben Merriman

What are the effects of the current political climate of hyper-polarization on intergovernmental relations? In Conservative Innovators, Assistant Professor at the University of Kansas Ben Merriman argues that polarization has “everything to do with state governments” and that it has encouraged heightened intergovernmental disagreement. The main assumption of the book is that state-level conservative figures such as governors and attorneys general developed a repertoire of strategies to challenge the Obama administration’s policies during the years 2009–16 and have transformed partisan disagreement into a conflict between different levels of government. This has been possible, Merriman argues, because the Obama era coincided with the consolidation of a long process in which the executive powers of state officials had grown along with expansion of the federal government. Conservative Innovators is a study of the different legal and political strategies used by state conservatives to push back on Obama’s major reforms. Chapter one sets the scene by discussing the growth of the administrative state and the resulting expansion of the executive power of agencies, endorsed by the courts’ elaboration of the doctrine of judicial deference. State executives grew in parallel with the federal executive at the expense of state legislatures, a phenomenon defined by Merriman as a “relatively successful model of executive federalism.” The major implication of the concentration of state power in the executive is that executive officeholders (state attorneys general) became increasingly important and could coordinate interstate legal and administrative actions.

Cooley v. Board of Wardens and its Nineteenth‐Century Legacy

<i>Cooley v. Board of Wardens</i> and its Nineteenth‐Century Legacy

The Mythical McCulloch

Generations of lawyers have been taught that McCulloch v. Maryland is the foundational precedent that established an expansive view of national power under the U.S. Constitution. In The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland, David S. Schwartz maintains that this is a myth created by twentieth-century progressives in order to make the expansive view they favored seem more venerable than it really is. I am satisfied that he has proved his case, though I am less sure that his revisionist history throws any new light on the spirit of the Constitution. Schwartz’s detailed commentary does sharpen the issues raised by recent efforts to cabin the expansive view of national power that McCulloch supposedly established. He likes what the progressives did with Chief Justice Marshall’s opinion and he laments the federalism decisions that began with United States v. Lopez in 1995. Schwartz thinks McCulloch has now been turned into a “splendid bauble,” but the truth is just the opposite. After thirty-five years, we have a few Supreme Court decisions whose effects have been trivial and whose pretended limits on federal power can easily be evaded. So far, the federalism revival has produced only pretty baubles, and the Court’s opinions promise nothing of any greater significance in the future.

The Dormant Commerce Clause: The Endgame—From Southern Pacific to Tennesse Wine &amp; Spirits—1945 to 2019

This article attempts to develop the undue burden balancing and the virtually per se discrimination tests of the modern Dormant Commerce Clause starting with the 1945 case of Southern Pacific v. Arizona and moving to Tennessee Wine & Spirits Retailers Ass’n v. Thomas, a case decided by the United States Supreme Court in June of 2019. The Commerce Clause, Article I, Section 8, Clause 3 gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Our most famous Chief Justice of the United States Supreme Court, John Marshall, defined Congress’s commerce power “among the several states” to be plenary and complete, setting the stage for Congress to use this power over interstate commerce as the basis for much of Congress’ power to pass legislation. Out of this immense federal power, Chief Justice Marshall deduced that since Congress had plenary power over interstate commerce, the states had none. Only Congress could regulate interstate commerce. Marshall called the implied limitations of the Commerce Clause “dormant” leading to what we now call the Dormant Commerce Clause. There are two main aspects to the modern Dormant Commerce Clause. First, states may pass evenhanded laws that impact interstate commerce, but even evenhanded laws may not impose undue burdens on interstate commerce. Second, states may not discriminate against interstate commerce by treating commerce from other states differently than in-state commerce simply because it is out of state. Under the undue burdens test, the Court will consider a number of factors, but primarily the Court will undertake a factual evaluation of the importance of the state interest in passing the law that impacted interstate commerce versus a practical consideration of the harm to interstate commerce. Under the discrimination rule, the Court will almost certainly find the discriminatory state law to violate the Dormant Commerce Clause, but the Court uses an almost tortuous series of approaches to reach what is close to a foregone conclusion. This tortious approach has led some to say that it is impossible to know which of the two tests to apply. This article attempts to identify the key factors involved in the Court’s undue burdens balancing approach and to closely explore the Court’s attempt to define discrimination and to determine when a state might be allowed to discriminate against interstate commerce. The hope is that at the very least students, lawyers, and lower courts might have some guidance in applying the two tests and in knowing the difference between the two.

От подхода 2Д – к подходу 4Д

От подхода 2Д – к подходу 4Д

We Will All Be Free or None Will Be: Why Federal Power Is not Plenary, but Limited and Supreme

Emma Lazarus, who gave us the poem The New Colossus inscribed on the Statue of Liberty on Ellis Island, is also credited for giving us the principle, “Until we are all free, we are none of us free.” The root of this principle traces back to the founding contributions of James Wilson. It also stretches into present day public consciousness through the works of Martin Luther King, Jr. in support of equal rights in America. The idea of the equality of rights being essential to the freedom and rights of each person consists in the ancient law of the citizen. It was old when Paul of Tarsus used it to appeal to Rome in the Court of Festus in Caesarea. That Court secured his right to immigrate into the capital to further vindicate his equal rights to the free exercise of religion. The Pilgrims of Plymouth Colony and later of Rhode Island similarly sought to secure this equality of rights to themselves by their immigration to America. Foreigners in a land of Native Americans who they thought to be Indians, the Pilgrims vindicated their religious rights upon a purchase rather than conquest or discovery. This was symbolized by Roger Williams’ escape into a snow storm, to make an appeal among the Natives for his life. Following Williams’ example, the American Revolutionaries declared their rights upon purchases from the original owners of the land, i.e., the Native Americans. They appealed as Paul and Williams did to the rights of an immigrant rather than the sanguine rights of blood or high-birth—and their cause was vindicated upon what Phillis Wheatley coined “the heaven defended line,” i.e., the equal rights of humanity. Thus, for the first several decades of its existence the United States held its doors open to immigrants. But over the years a movement to exclude immigrants began to take form in the States. It was lifted into exclusive federal purview in Prigg v. Pennsylvania, and was finally extended in Chae Chan Ping as the plenary power to exclude immigrants, which is the entire basis of federal Immigration Law as we know it today. This article will demonstrate how the judicial assertion of plenary rather than limited powers is the root of Immigration Law in America, and it will provide strategies to reverse Donald J. Trump’s recent assertion of Immigration Law as a source of unbounded Executive Power.

Sanctuary Cities and the Power of the Purse: An Executive Dole Test

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decisionmaking and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than thirty years of Supreme Court precedent since South Dakota v. Dole, must be clearly articulated in advance, related to the underlying purpose of the federal funds, and not deemed coercive by the courts. The Attorney General recently announced conditions on federal law enforcement grants that would defund police departments who do not cooperate with federal immigration officials. These new funding conditions triggered legal challenges by a dozen jurisdictions under the Spending Clause. While the case law is clear that Congress may delegate its authority to the Executive to add conditions on federal grants, two important questions remain unresolved: (1) does the authority to add conditions on spending inherently attach to delegations to implement federal grant programs or must that authority be delegated separately and unambiguously? and (2) are executive conditions subject to the same standards of clarity, germaneness, and non-coercion? Recent threats by the President to withhold funding for elections, education, and public parks amplify the need for clarity on these questions. In this Article, I argue that executive conditions on federal spending are unquestionably appropriate, but only when Congress has unambiguously delegated the authority to add conditions. This delegation should not act as a loophole in the Dole doctrine. In fact, because the central constitutional concern in Spending Clause cases is the undue aggrandizement of federal power at the (literal) expense of the states, I argue that executive conditions on federal spending should be subject to stricter limits than conditions imposed by Congress; inter-branch coordination poses a greater threat to state sovereignty than either Congress or the Executive acting alone. The upshot of stricter executive limits is that conditions on federal spending will likely shift away from the Executive to Congress, which may be desirable on accountability grounds. Finally, the recent appointment of Justices Gorsuch and Kavanaugh to the Supreme Court have raised the stakes of this particular debate. Both of the new Justices have publicly articulated concerns about expanding federal power and federal administrative power in particular. The question of sua sponte executive conditions on federal grants-in-aid thus pose a ripe opportunity for skeptics of the administrative state to rein in the regulatory state in particular, and the Spending Clause more generally.

This Vast Southern Empire: Slaveholders at the Helm of American Foreign Policy by Matthew Karp

Reviewed by: This Vast Southern Empire: Slaveholders at the Helm of American Foreign Policy by Matthew Karp Donald A. Rakestraw This Vast Southern Empire: Slaveholders at the Helm of American Foreign Policy. By Matthew Karp. Cambridge: Harvard University Press, 2016. 368 pp. $31.00. ISBN: 978-0-6747-3725-9. In This Vast Southern Empire Matthew Karp adds his convincing voice to those recasting the profile of southern planter elites in antebellum America. Far removed from the traditional image of myopic states' rights agriculturalists devoted to the static forms of the past, these southern power brokers were sophisticated champions of an advancing global market structure centered on the proliferation [End Page 363] of African slave labor. They were, Karp contends, "cosmopolitan in outlook" and "practical visionaries" who "warmly embraced the global dimensions of their struggle" and believed that "the growth of slavery" was intrinsic to the march of civilization (3, 2, 4, resp.). Karp notes that southern proslavery statesmen such as Andrew Jackson, John Tyler, James K. Polk, John C. Calhoun, Abel Upshur, and Jefferson Davis held the reins of both the military and foreign policy apparatus for most of the antebellum period. During these years, they were not, as commonly assumed, married to states' rights but were intentional in their application of federal power and the promotion of "a strong outward state" through which, Karp contends, they could summon "federal authority not only to secure their immediate property rights, but also to extend the power of the United States on an international stage" (6). Southerners' carping about states' rights only appeared on occasions that served their immediate interests. For much of the period, they found those interests better served by a powerful federal authority over which they exerted significant influence. These southern leaders at the national helm, Karp argues, constructed "a foreign policy of slavery," the orchestration and implementation of which was essential, in their view, not just for the South but for the entire nation. "From their international perspective," in Karp's estimation, "'this vast Southern Empire' was, quite simply, the United States" (8). In pursuit of their vision this slaveholding coterie found partners in the hemisphere with fellow slave states Cuba, Brazil, and, prior to annexation, the Republic of Texas. An obvious and looming impediment to the southern plan emerged when the British announced the Slavery Abolition Act of 1833, ending slavery in most of the empire. More importantly for American observers, the act promised emancipation to over three quarters of a million bound servants in the Western Hemisphere. This act, Karp notes, "would transform the way southern elites thought about foreign affairs more forcefully than any other global event between the American Revolution and the Civil War" (12). Southern slaveholders now found their vision threatened not just in theory but in action. Soon, southern slave "property" was forfeited [End Page 364] to a British determination to free any slaves who arrived on their West Indian shores no matter the circumstance or the flag of the transport---the most notable example of which involved the slaves of the Creole, whose escape from the United States to the Bahamas raised a number of festering issues of international law and property rights. Britain's commitment to abolition reflected in such affronts to the legality of bound servitude formed an adhesive for proslavery advocates across the hemisphere that southern internationalists could exploit to secure and advance their economic model. Karp notes that southern elites understood that the key to securing the future of the slave system and implementing the foreign policy of slavery was a strong U.S. military, especially its naval arm. The connection of the extension of the U.S. military footprint to the South's determination to propagate a modern capitalist structure based on slave-produced southern cotton (pre-annexation Texas included), Cuban sugar, and Brazilian coffee weaves its way throughout the book. Contrary to traditional thinking that connected the military buildup to the fetish of U.S. expansionism, Karp makes it clear that the goal was not expansion of slavery but protection of the institution itself. He notes early on and reinforces throughout the book that, apart from Texas, the southern priority during the antebellum period...

Uncovering Wholesale Electricity Market Principles

This paper examines, enunciates, and makes explicit a set of market principles historically relied upon by the Federal Energy Regulatory Commission (FERC) to regulate wholesale electricity markets as required under the Federal Power Act (FPA). These identified competitive market principles are supported by policy and legal foundations that run through a myriad of FERC orders and court decisions. This paper seeks to make that history and those implicit market principles explicit by distilling and organizing Commission Orders and court decisions. It concludes that five market principles, each with multiple subprinciples, can be identified as elemental to how FERC understands and implements its statutory authority. Clear articulation of these foundational principles should help guide engaged entities as wholesale power markets continue to evolve. Market Principle 1 states that wholesale market revenues should predominantly flow from well-designed energy and ancillary services markets. Market structures generally are found to be preferable to non-market structures. Moreover, energy and ancillary services markets, in relationship to wholesale capacity markets, are better able to efficiently promote a least-cost resource. Market Principle 2 states that when altering market design, FERC and Independent System Operators (ISOs) should focus on only those services that are clearly needed, and ensure that any market design change does not unduly discriminate between resources. Market design changes focused on technology-neutral and well-defined granular services will help ensure that the design change does not lead to undue discrimination or preference that effectively favors certain resources. When such an impact still occurs, strong evidence showing that the rules are not unreasonable and arbitrary and that no non-unduly discriminatory and preferential alternative exists must support the change. Market Principle 3 states that interventions that distort transparent and accurate pricing should be minimized. Out-of-market interventions, in particular, have the potential to distort price signals and undermine competition. Market Principle 4 states that FERC’s just and reasonable standard strongly favors rate decreasing outcomes. Markets are premised on the economic presumption that competition reduces prices, in furtherance of the just and reasonable standard. Market Principle 5 states that FERC and ISOs should facilitate and not undermine state public policy preferences. FERC and ISOs are not well-situated to serve as decision-makers in determining which state public policy preferences should be given effect. State public policy preferences that do not run afoul of FERC’s authority under the FPA should thus be given full effect.

From Attleboro to EPSA: The Pace of Change and Evolving Jurisdictional Frameworks in the Electricity Sector

Author(s): Panfil, Michael | Abstract: This Article compares the pattern of fundamental change, legal and regulatory response, and judicial adaptation underlying the electricity sector’s twentieth century beginnings to its current and ongoing rapid transition. This comparison is then used as a basis to examine and contextualize the collaborative federalism jurisdictional framework that the Supreme Court employs when adjudicating modern-day jurisdictional disputes in the sector.The early 1900s saw a period of rapid industry expansion, with the electricity sector progressing from small intrastate utilities to a sprawling interstate grid. The expanding grid rapidly outgrew the state-led regulatory framework that had organically developed. In turn, Congress responded by passing the Federal Power Act to fill what is now known as the Attleboro gap. Courts in turn needed to resolve consequent jurisdictional tensions that arose under the new federal and state balance of authority. The courts employed a bright-line jurisdictional framework that divided authority on the basis of location, adjudicating disputes by determining where the contested action took place. This line-drawing split federal authority on one side of the juridical line—such as wholesale sales and interstate activities—and state authority on the other, such as retail sales and intrastate activities.Just as the interstate expansion of the grid disrupted industry and regulatory structure in the 1900s, modern rapid change is once again creating new benefits and interests through foundational sector disruption. This disruption has similarly placed pressure upon the electricity sector and its regulation. This Article analyzes three foundational changes to the electricity sector that are spurring energy transition and grid modernization: opening the industry to competitive market forces; technological advances making a multidirectional grid possible; and evolving state policy preferences and priorities that seek to combat climate change. The foundational change underway in the electricity sector has spurred a legal and regulatory response in order to create new connections between longstanding statutory mandate and sector change. Congress, the Federal Energy Regulatory Commission (FERC), and states have responded with laws and regulations that acknowledge a sector that now resists simple, bright-line jurisdictional division. These responses have invited increasingly frequent court review. In adjudicating disputes in the electricity sector, the courts have turned to and fully embraced a functionalist, ‘collaborative federalism’ jurisdictional framework. This jurisdictional framework considers an issue’s intent, target, and effect rather than an issue’s location. It best enables courts to adjudicate disputes in the context of changes occurring within the modern electricity sector.

Inventing the Immigration Problem: The Dillingham Commission and its Legacy by Katherine Benton-Cohen

Reviewed by: Inventing the Immigration Problem: The Dillingham Commission and its Legacy by Katherine Benton-Cohen Jeanne Petit Inventing the Immigration Problem: The Dillingham Commission and its Legacy. By Katherine Benton-Cohen. (Cambridge, Mass.: Harvard University Press, 2018. Pp. 342. Photographs, notes, index.) Katherine Benton-Cohen seeks to understand the meaning and legacy of the Dillingham Commission, the three-year congressional study of immigration that began in 1907 and issued its report and recommendations in 1911. She faced a significant challenge in writing this book. The main source is a massive, multivolume government report with thousands of pages of statistics and graphs, but there is little documentation of how the report was created because the papers of the Dillingham Commission were not preserved. Benton-Cohen finds a solution to this dilemma by concentrating on an array of men and women—social scientists, reformers, religious leaders, politicians, and others—who sought to shape the report’s findings and recommendations. In the process, she argues, those who participated in the Dillingham Commission competed to create a framework for understanding migration to the United States, ultimately creating a powerful and consequential vision of the “immigration problem.” While many historians recognize the significance of the Dillingham Commission in justifying immigration restriction, Benton-Cohen examines how participants used complex and competing political, economic, and ideological arguments to shape the report. One interesting insight here is how, perhaps not surprisingly, the work of the commission created unexpected political bedfellows. For instance, while many Jewish lobbyists advocated for Judaism to be labeled a religion, Zionists agreed with the restrictionist Senator Henry Cabot Lodge that Jews should be classified as a distinct “Hebrew race.” Moreover, Jewish philanthropist Jacob Schiff advocated for the redistribution of Jewish immigrants to Texas to counter criticism about their concentration in the New York area. This idea was likewise promoted by Mississippi Senator LaRoy Percy, who wanted to address what he called “the Negro problem” by replacing [End Page 483] low-wage African American agricultural workers in Mississippi with Italian immigrants. A central theme throughout the book is that those with different views on immigration shared a belief in the expanded use of federal power to achieve their goals. Many commissioners used their authority to pry into the personal lives of individuals, particularly vulnerable people. Jett Lauke, a “practical economist” (108) who led an expansive investigation of industrial conditions for the commission, coerced workers in steel towns to answer personal questions about employment history, savings, and even grocery bills. He used the report to argue that the federal government should exclude immigrants to protect what he called “the vanishing American wage earner.” Anthropologist Franz Boas made the opposite argument, that immigrants should not be excluded because they assimilated into what he called “the American type.” To make this case, he, too, used federal authority to get schools to allow him to measure the skulls and other physical features of children. The author includes an entire chapter on each of Lauke’s and Boas’s concepts of American types. Another contribution this book makes is to demonstrate how the Dillingham Commission offered opportunities for those on the periphery of power to shape perceptions of migration. These figures include Yamato Ichihashi, a Japanese immigrant who offered sympathetic portraits of Japanese farmers in California. They also include social worker Anna Herkner, who went undercover on shipping vessels to examine the conditions immigrant women faced. She successfully advocated for a federal law limiting immigrants in steerage. At the same time, Benton-Cohen shows that powerful figures like Henry Cabot Lodge had the ability to shape the final recommendations, which portrayed immigration as a problem to be solved through restriction. Through a focus on historical actors, the author demonstrates the multiple ways Progressive-Era Americans created the “immigration problem” and reimagined the ways federal policy could deal with it. As Benton-Cohen points out, the Dillingham Commission’s legacy shapes the way we understand immigration policy to this day. Jeanne Petit Hope College Copyright © 2020 The Texas State Historical Association

The Green New Deal Must Preserve the Existing Nuclear Fleet

As the largest source of carbon-free energy in the United States, nuclear energy must play a vital role in reducing emissions. This article suggests the Green New Deal, an ambitious federal proposal to address climate change, should aim to preserve the existing nuclear fleet by authorizing states to establish zero emission credit (“ZEC”) programs. The ZEC programs will provide credits, in the form of revenue, for the carbon-free attribute of nuclear energy. This article posits the ZEC programs should be based on a model ZEC program developed by the Federal Energy Regulatory Commission and explicitly authorized by amendment of the Federal Power Act to avoid issues of preemption.