46 Pages Posted: 23 Oct 2010 Last revised: 22 Nov 2010
Date Written: November 15, 2010
This Essay provides an initial account of a strategic apparatus crafted by private lawmakers to influence federal policy. The “battering ram strategy” employs the legal powers of states and localities to challenge and weaken federal laws. Recently, a specific weapon, the “Commerce Battering Ram,” has developed to challenge current Commerce Clause jurisprudence, using the heft of the Tenth Amendment and numerous state legislatures to propel its argument forward. The weapon’s strength is augmented by the ability of private lawmakers, facilitated by Citizens United, to stack state legislatures with senators and representatives who are sympathetic to their goals. The Essay documents the core of a particular Commerce Battering Ram, the Firearms Freedom Act movement, which has proliferated and armed other Tenth Amendment platforms with a similar formula for challenging federal laws. This formula was drafted and promoted by a private citizen with a specific gun rights agenda. State legislators have enacted and cloned the formula, and its model has been adopted to challenge federal law in other regulatory domains, most notably healthcare reform. The compounding effect of these Commerce Battering Rams has not been studied. However, if their proponents - largely members of the Tea Party movement - are successful in their attempt to break through the walls of federal law, the result may have an enormous unintended impact on the American people.
Keywords: Commerce Clause, Tenth Amendment, Second Amendment, Tea Party, Firearms Freedom Act
Suggested Citation: Suggested Citation
Orbach, Barak and Callahan, Kathleen S. and Lindemenn, Lisa M., Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy (November 15, 2010). Arizona Law Review, Vol 52, p. 1161, 2010; Arizona Legal Studies Discussion Paper No. 10-36. Available at SSRN: https://ssrn.com/abstract=1696012