Federalism or States’ Rights
Mr. Fein is steeped in the law of federalism, i.e., the Constitution’s division of powers between the federal government and the States, including areas of concurrent jurisdiction such as the antitrust laws or the regulation of securities.
Generally speaking, the Tenth Amendment reserves powers to the States that are not conferred exclusively on Congress or the President. Mr. Fein has argued against interpreting the congressional power to regulate interstate commerce to shrink the Tenth Amendment into a virtual inkblot, for instance, the Affordable Health Care Act sustained by the United States Supreme Court in NFIB v. Sebelius (2012). He has also deplored use of the treaty power of the President and the Senate to invade state prerogatives otherwise protected by the Tenth Amendment. On the other hand, Mr. Fein applauded the Supreme Court’s decision denying unilateral presidential power to compel States to comply with rulings of the World Court in Medellin v. Texas, 552 U.S. 491 (2008). And Mr. Fein agreed with that portion of the Supreme Court’s opinion in Sebelius that Congress was constitutionally precluded from brandishing its power to spend to coerce States into embracing a federal grant-in-aid program, such as a drastic expansion of Medicaid eligibility.
Mr. Fein is steeped in the law of the Eleventh Amendment. It generally prohibits private suits in federal courts against States without their consent (as opposed to suits by the federal government to enforce federal law). The Amendment also protects state officials sued in their official as opposed to their individual capacities. The Supreme Court has held that a suit against the State seeking damages or other relief for past wrongdoing falls within the protective ambit of the Amendment. Lawsuits in federal courts seeking prospective relief by enjoining state officials in their official capacities are not prohibited.
The power of Congress to abrogate Eleventh Amendment immunity is confusing. Generally, Congress is empowered to expose States to suits for damages in federal court under federal statutes that employ remedies that are congruent and proportionate to violations of the Fourteenth Amendment as expounded in City of Boerne v. Flowers, 521 U.S. 507 (1997). The abrogation power of Congress is otherwise narrowly limited. In a parallel vein, the Supreme Court invalidated the pre-clearance federal review mandate for changes in certain state or local election laws under section 5 of the Voting Rights Act as arbitrary in Shelby County v. Holder, 570 U.S. ___ (2013).
Mr. Fein is regularly consulted as an expert by state legislatures seeking to prohibit the federal government from commandeering the machinery of state government to assist in the enforcement of federal statutes as authorized by the Supreme Court’s decision in Printz v. United States, 521 U.S. 898 (1997).