The Wall Street Journal reviewed Erwin Chemerinsky's book, Enhancing Government. John McGinnis writes, "Mr. Chemerinsky sketches a vision of federalism that would empower
government at all levels and delight civil plaintiffs and criminal
defense lawyers of every description. The great virtue of Mr.
Chemerinsky's book is that it serves as a blueprint for the Obama
administration and a fair warning to its opponents." The full text of the review can be found here.
McGinnis argues that in making a case for empowering state and local government to deal with social problems, Chemerinsky ignores the distinction between national and local consequences of the legislation.
"When Congress has gone to the trouble of establishing a regulatory apparatus, and its regulators have arrived at a judgment about the safety of a medical device, the court is right to infer that Congress does not want states simply to "opt out" of the judgment if they like."
While it is true that Chemerinsky's proposal puts limits on federal power, it empowers every level of government to deal with social problems, a point that the review fails to mention. In his view, federal power should address national problems like environmental protection and violations of civil rights, while state power can be strengthened in areas such as consumer privacy and employee protection. So the proposal reserves a place for federal action. And, Chemerinsky presumably would agree with federal legislation that seeks to put a ban on hazardous medical devices.
The book passionately argues for a different vision: federalism as empowerment. It lays a challenge to the Court—and to the next president—to approach their decisions with the aim of advancing liberty and enhancing effective governance.
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