The US Supreme Court and the Centralization of Federal Authority

My monograph appears in SUNY Press’s “American Constitutionalism” series. This book unearths the constitutional arguments used to expand the federal government. Political characterizations of the national state as “strong” or “weak” (or as “big” or “small”) miss the nuanced ways the national state and constitutional law have evolved over time. Both scholarly and public communities have misunderstood the strength and growth of federal government in the typical periods that comprise American political history. After this systematic and empirical analysis of constitutional decisions, it becomes clear that no matter the justice’s ideology or the historical era, the Court has persistently expanded and centralized federal authority across each constitutional issue area.

Thus, my book uncovers when and where the federal state’s authority grew in size and scope thereby revising our understanding of American state-building. I explore this theme with an original database of constitutional decisions gathered from fifty-eighty constitutional casebooks and treatises published between 1822 and 2010.

“Problems of Litigating Hardrock Mining”

Various professors at Fort Lewis College are putting together an interdisciplinary, edited volume, analyzing the August 2015 EPA-caused Animas River spill, a river that runs through Durango, Colorado where Fort Lewis is located. We will examine the spill from multiple disciplinary angles–political science, geosciences, psychology, and chemistry, to name a few areas. This volume will be published by University of Colorado Press. I have contributed a chapter on litigating environmental issues.

Chapter Submission: litigating hardrock mining

Articles in Progress:

“The General Mining Act of 1872: Resettlement and State Formation in the Mountain West” (rough draft complete)

This paper examines how the General Mining Act of 1872, a congressional statute that still governs hardrock mining in the American west, codified local western mining practices, incentivized economic development and population settlement, and produced an early example of the litigation state (Farhang 2010). With this legislation, the federal government helped extend and expand central state authority through land policies that incentivized “population movement” (Frymer 2014).

Draft of the paper: The General Mining Act and State Formation

“The Political Origins and Constitutional Nature of the United States Court of Claims” (with Logan Strother and Ryan Williams, research in progress)

This paper examines the institutional development and history of the U.S. Court of Claims (USCC), now called the U.S. Court of Federal Claims. A relatively obscure institution, this specialized court has national jurisdiction, and it is authorized to hear primarily money claims founded upon the Constitution and in other federal laws. Unique to the court is that it has vacillated between Article I and Article III designations, making it an important site for understanding why regimes empower courts and for uncovering the nature of judicial power. While most American political development literature focuses heavily on the Supreme Court and explaining judicial review, the USCC a way to understand how the judiciary constructs and define its own power. Congressional and Supreme Court conflicts over the USCC reveal how judicial finality remains central to judicial, that is Article III, power, and that even bureaucratic specialized courts are not immune to patronage politics. 

“The Curious Case of Texas v. Azar” (with Phillip Singer, research in progress)

Since its passage in 2010, the Affordable Care Act (ACA) has been at the center of several significant legal cases. In the 2012 Supreme Court case, NFIB v. Sebelius, the Court held that the legislative language of the Affordable Care Act (ACA) Medicaid expansion was “so coercive as to pass the point at which pressure turns into compulsion.” Chief Justice Roberts’ opinion hinged on the idea that states should be able to participate in the pre-ACA Medicaid program, which covered fewer people, without being forced to join the “new” one or risk losing federal funds. In the ongoing case Texas v. Azar, the 5th Circuit Court of Appeals recently struck down the entirety of the ACA, including the Medicaid expansion. 18 states challenged the constitutionality of the ACA in Texas after the 2017 Tax Cuts and Jobs Act zeroed out the individual mandate penalty. Of the plaintiffs engaged in Texas, 11 also adopted the Medicaid expansion program in their states. These seemingly contradictory positions motivate our research. Why would a state adopt the ACA Medicaid expansion, but then advocate for abolishing the entire ACA? Through interviews of policymakers and analysis of media coverage, we conduct in-depth case studies of “flip-flopping” states while also examining other interesting marginal cases such as North Carolina that did not expand Medicaid, but also oppose the plaintiffs’ position in Texas v. Azar. While the full consequences of the Texas decision are not yet known, our analysis highlights the shifting state politics of health reform, the influence of federalism on state politics, and the role of the judiciary on health politics.

Can You Say That?” (research in progress)

This paper examines US Supreme Court and Appellate Courts’ interpretation of a subset of free speech cases: those that deal with hate and obscenity. In Miller v. California (1971), the Court held that obscene materials did not enjoy protection partly because such speech lacked “serious literary, artistic, political, or scientific value.” And, yet, it can be argued that hate speech also lacks such value. Nevertheless, based on an original dataset, I find that federal courts protect hate speech far more frequently than obscenity cases. Hate speech, and issues of controversial speech, more broadly, are on the rise throughout the US. But, as a discipline, we have relatively little systematic data on hate speech and its treatment; even the US Supreme Court Database does not code and categorize “hate speech.” Thus, I ask why do federal courts protect hate speech far more frequently than it protects obscene speech? This paper combines both statistical analysis of an original dataset while also examining doctrinal developments that prevented obscenity from being a protected class of speech. I argue that courts have understood hate speech as often political in nature, and thus they have protected it more consistently than obscenity.