Federalism, Law Enforcement, and the Supremacy Clause: The Strange Case of Ruby Ridge

There is no federalism clause in the Constitution, and the case law ranges over a number of different provisions - the Commerce and General Welfare Clauses, and the Eleventh and Fourteenth Amendments, for example. But the two provisions that most directly implicate the doctrine are the Supremacy Clause and the Tenth Amendment. The former states that [t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land ....”, The latter provides that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Together, these provisions describe a straightforward principle: where Congress and the President act within the powers expressly afforded them by the Constitution, their laws and acts prevail; in all other respects, power and authority reside with the States, or with the people themselves. In practice, of course, life rarely divides cleanly into hermetic categories. And it is therefore somewhat curious that there is so little case law addressing the long doctrinal border between the Supremacy Clause and the Tenth Amendment. For much of our constitutional history, the latter was thought to constrain the federal government from telling a state where it could locate its capital, and not much else

Twins at Birth: Civil Rights and the Role of the Solicitor General

It is painful even today to contemplate the awful devastation wreaked upon this nation by the War Between the States. But like most cataclysms, the Civil War also gave birth to some important positive developments. I would like to talk with you today about two such offspring of that war, and the extent to which, like many sibling pairs, they have influenced each other\u27s development. The first child - the most well-known progeny of the Civil War - was this country\u27s commitment to civil rights. The war, of course, ended slavery. But it did not - and could not - change the way Americans thought about and treated each other. Civil rights and their polestar, the principle of equal protection of the laws, encompass far more than the absence of state-sanctioned servitude. The Congresses and Presidents that served in the wake of the Civil War aimed at this more fundamental and difficult goal. They brought about ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. And they enacted a variety of laws designed to enforce the guarantees of those Amendments. But as history shows so agonizingly, it takes much more than well-meaning laws - or even constitutional amendments - to reweave the social fabric of a nation. In the first place, a law that is merely on the books is quite different from one that is actually enforced. And what is more, a law that is enacted will not necessarily even remain on the books. Under the principle of judicial review established in Marbury v. Madison, the Supreme Court is the final arbiter of the meaning of the Constitution, the interpretation of federal statutes, and the validity of those statutes under the Constitution. Congress can pass laws, but unless those laws are enforced, they have little meaning in people\u27s lives. And unless they are upheld when challenged in the Supreme Court, they cannot be enforced. And that is where my other child of the Civil War - a much more obscure offspring - comes in. The position of Solicitor General was created by Congress in 1870, shortly after ratification of the Fifteenth Amendment. It is without doubt an utterly unique institution. Perhaps nothing exemplifies this better than this anomaly: whereas many lawyers consider being Solicitor General the greatest job one could ever have (and they are right), the overwhelming majority of citizens has no idea what the Solicitor General does - or even that the country has one

Defending Congress

Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of government and of the people. How on earth is that done? It is a little like asking a millipede how it knows which foot to put first

Remarks of Seth P. Waxman at the Memorial Observance for Justice Byron R. White, United States Supreme Court

Members of the Court, members of the family, and friends of Justice White- Alone among today\u27s speakers, I met Justice White only late in his life. Growing up in the law, my relationship with him was the one many kids today have with Michael Jordan - I wanted to be like White -like the kind of man he was. I still have that aspiration. Like Byron White, I served in the Department of Justice and was altered forever by that honorable institution. And - like Justice White, in my own lesser way, I strove within the walls of this institution to protect the authority of the national government. Those themes of Justice White\u27s remarkable career - his tenure in the national Executive and his championing of the national Legislature - have been marvelously captured in the remarks of my colleagues. It is perhaps fitting then, in this of all places, to conclude by reflecting on Justice White\u27s perspective on the national judicial power - on the role of the federal courts

The Physics of Persuasion: Arguing the New Deal

Seth Waxman was the 41st Solicitor General of the United States, serving from November 1997 through January 2001. This is a somewhat expanded version of a lecture delivered at Yale Law School on October 8, 1999. The author expresses his deep gratitude to Jeffrey A. Lamken, an Assistant to the Solicitor General, for his exceptional assistance