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The lack of uniformity of state laws applicable to employer withholding and their employees who work in multiple states has created a cumbersome compliance burden, not only for employers, but also for employees. This paper discusses the state tax ramifications associated with an employer having employees who work from a different state, and employers who have employees who perform services in multiple states. The paper also looks at proposed remedies for the mobile workforce issue, including proposed federal legislation and the Multistate Tax Commission's proposal addressing the issue. The paper considers whether Congress has authority under the Commerce Clause to regulate this issue. The paper concludes with alternative recommendations to consider as a workable solution.

Abuse of physician prescribed opioids contributes to health and economic burdens associated with dependency, overdose, and death. Since the 1900s, the United States (U.S.) Congress has legislated use and misuse of controlled substances. Under the U.S. Constitution, states developed prescription drug monitoring programs (PDMPs) that determine how the program is managed, what data to track, and what information to share with other states. Lack of a standard data set that allows providers to see prescribing data for designated controlled substances across state lines, limits benefits of state PDMPs. A federal PDMP with a standard minimal set of variables shared across states could enhance patient care. States would exercise their police powers while sharing standard data to decrease adverse consequences of the opioid epidemic.

The question of the kinds of water bodies federal and state agencies may regulate under the federal Clean Water Act (CWA) has reached the US Supreme Court 3 times without clear resolution. The Waters of the United States (WOTUS) rule adopted by the Environmental Protection Agency and the Army Corps of Engineers (collectively, the agencies), based in part on a recent synthesis of science regarding the connectivity of surface waters (USEPA 2015), seeks to reduce regulatory uncertainty by clarifying which waters are subject to CWA regulation. The rule makes progress in that regard, but has been challenged in court on grounds that the agencies seek jurisdiction over waters that are not properly covered in the CWA, and members of Congress have taken steps to overturn the rule legislatively. The rule’s legality depends on: 1) the breadth of federal constitutional authority over “navigable” waters, 2) the text and meaning of the CWA, and 3) the relationship between the proposed regulation and the science used by the agencies to support the rule. From a constitutional perspective, the courts will have to determine whether the agencies have demonstrated that the waters over which jurisdiction is asserted have a sufficient effect on traditional navigable waters to be subject to federal regulation under the Commerce Clause of the US Constitution. From a statutory perspective, the courts will have to determine whether the scientific evidence shows that those types of water bodies fall within the intent and scope of the CWA as adopted by Congress. From a scientific perspective, to defend the rule in court the agencies will have to show that the synthesis report and other relevant scientific information adequately demonstrate that regulation of various categories of upstream waters is necessary to ensure protection of traditional navigable waters over which the agencies clearly have regulatory authority, and other types of waters over which the agencies have jurisdiction under the Constitution and the text of the CWA.

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. InRestoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a \"presumption of liberty\" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative,Restoring the Lost Constitutionforcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the \"general Welfare\" of the United States by tackling many collective action problems that the states could not solve on their own. Subsequent interpretations of Section 8, both outside and inside the courts, often have focused on the presence or absence of collective action problems involving multiple states—but not always. For example, the Supreme Court of the United States, in trying to distinguish the \"truly national\" from the \"truly local\" in the context of the Commerce Clause, United States v. Morrisoa 529 U.S. 598, 617-18 (2000), has differentiated \"economic\" activity, which Congress may regulate, from \"noneconomic\" activity, which Congress may not regulate. A federal constitution ideally gives the central and state governments the power to do what each does best. But economic activity does not generally cause collective action problems among the states, and noneconomic activity is not generally free from collective action problems. Consequently, Congress is not generally better at regulating economic activity, and the states are not generally better at regulating noneconomic activity. The distinction between economic and noneconomic activity seems mostly irrelevant to the problems of federalism. We propose a better foundation for American federalism in Section 8. Our theory distinguishes activities that pose collective action problems from those that do not. This approach flows directly from the relative advantages of the federal government and the states. We show that Section 8 mostly concerns collective action problems created by interstate externalities and national markets. We conclude that Section 8 authorizes Congress to tax, spend, and regulate to solve these collective action problems. Collective action federalism finds that the limits and expanse of congressional power in Section 8 turn on the difference between individual and collective action by the states. The theory uses this distinction to differentiate interstate commerce from intrastate commerce, not the economic/noneconomic distinction. Our distinction best explains why Congress may not ordinarily use its commerce power to regulate such crimes as assault or gun possession in schools. Collective action federalism also identifies a constitutional \"hook\" for Congress to regulate multi-state problems of collective action that may not involve commerce: Clause I of Section 8 authorizes some forms of regulation of noneconomic harms that spill over state boundaries, such as contagious diseases and certain kinds of environmental pollution.

Presently, the states are engaged in intense interstate competition for economic activity by providing tax incentives for businesses to locate in-state. In this Article, Professor Enrich argues that these state location incentives harm the states and their citizens, and that the Commerce Clause may present the only possible realistic restraint on this \"second Civil War.\" Although the Supreme Court has long employed the dormant commerce clause to strike down state regulations that discriminate against out-of-state economic actors, the clause has not been used to curb the states' attempts to influence business location decisions through the use of tax incentives. Professor Enrich asserts that this dichotomy is not intrinsic to the clause itself, but is attributable, in part, to the interests of the particular parties who have litigated Commerce Clause disputes. Upon examining the motives and judicial standing of the potential litigants, he concludes that the states themselves are viable candidates to bring constitutional challenges to state location incentives. Professor Enrich contends that the Supreme Court's Commerce Clause case law, which focuses extensively on discriminatory aspects of state taxation, provides a solid basis for constitutional attacks upon many common forms of business tax breaks. He argues, however, that the Court must reframe its analysis of discriminatory state taxation in order to evaluate sensibly the full range of state location incentives. He proposes an antidistortion standard, which would judge whether a state tax incentive violates the Commerce Clause by assessing whether that incentive distorts economic decisionmaking concerning the location of business activity. By refocusing its jurisprudence, the Court can end the harmful consequences of state competition for businesses and reassert the primacy of the Commerce Clause as a protector of a robust national economy and a healthy federalism.

Bankruptcy in America, in stark contrast to its status in most other countries, typically signifies not a debtor's last gasp but an opportunity to catch one's breath and recoup. Why has the nation's legal system evolved to allow both corporate and individual debtors greater control over their fate than imaginable elsewhere? Masterfully probing the political dynamics behind this question, David Skeel here provides the first complete account of the remarkable journey American bankruptcy law has taken from its beginnings in 1800, when Congress lifted the country's first bankruptcy code right out of English law, to the present day. Skeel shows that the confluence of three forces that emerged over many years--an organized creditor lobby, pro-debtor ideological currents, and an increasingly powerful bankruptcy bar--explains the distinctive contours of American bankruptcy law. Their interplay, he argues in clear, inviting prose, has seen efforts to legislate bankruptcy become a compelling battle royale between bankers and lawyers--one in which the bankers recently seem to have gained the upper hand. Skeel demonstrates, for example, that a fiercely divided bankruptcy commission and the 1994 Republican takeover of Congress have yielded the recent, ideologically charged battles over consumer bankruptcy. The uniqueness of American bankruptcy has often been noted, but it has never been explained. As different as twenty-first century America is from the horse-and-buggy era origins of our bankruptcy laws, Skeel shows that the same political factors continue to shape our unique response to financial distress.

According to Harvard Law Professor Richard Fallon, federal courts scholars have been doing much the same thing since the original publication of The Federal Courts and the Federal System2 in 1953-asking much the same questions formulated by Henry Hart and Herbert Wechsler . . . and trying to answer them with roughly the same techniques. [...] these two articles set forth a new model of judicial review, a new lens through which to read the Constitution. [...] the Court's euphemistic pathetic fallacy-declaring that statutes, rather than governmental actors violate the Constitution-has not merely obscured constitutional accountability and abetted constitutional culprits; it has also led to deep analytical confusion about the constitutional structure of judicial review.

This essay argues that the interpretive struggle over the meaning of American federalism has recently shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. For nearly a decade, these quieter, more structurally ambiguous federal powers—the \"shadow powers,\" as I term them—have steadily increased in prominence. Beginning with Gonzales v. Raich (2005) and continuing through and beyond National Federation of Independent Business v. Sebelius (2012), the Supreme Court's federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress's commerce power, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. The novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such the necessary and proper power. The invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving baseline of a narrow commerce power. The growth of shadow powers analysis has obscured the outlines of federalism's map—to shroud genuine (and perhaps salutary) doctrinal changes within a fog of constitutional text, insufficiently overruled precedents, and acontextual readings of foundational cases.