Faculty Bibliography

A timely account of a raging debate: The history of the ongoing struggle between the presidents and Congress over who has the power to declare and wage war. The Constitution states that it is Congress that declares war, but it is the presidents who have more often taken us to war and decided how to wage it. In Waging War, David J. Barron opens with an account of George Washington and the Continental Congress over Washington’s plan to burn New York City before the British invasion. Congress ordered him not to, and he obeyed. Barron takes us through all the wars that followed: 1812, the Mexican War, the Civil War, the Spanish-American war, World Wars One and Two, Korea, Vietnam, Iraq, and now, most spectacularly, the War on Terror. Congress has criticized George W. Bush for being too aggressive and Barack Obama for not being aggressive enough, but it avoids a vote on the matter. By recounting how our presidents have declared and waged wars, Barron shows that these executives have had to get their way without openly defying Congress. Waging War shows us our country’s revered and colorful presidents at their most trying times—Washington, Lincoln, Theodore Roosevelt, Franklin Roosevelt, Truman, Eisenhower, John F. Kennedy, Johnson, both Bushes, and Obama. Their wars have made heroes of some and victims of others, but most have proved adept at getting their way over reluctant or hostile Congresses. The next president will face this challenge immediately—and the Constitution and its fragile system of checks and balances will once again be at the forefront of the national debate.

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” This Article is the second part of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. In the companion Article, Professors Barron and Lederman described the structural forces responsible for this shift in the ground of debate and demonstrated that evidence from the Founding era does not reveal an original understanding that the Commander in Chief enjoyed preclusive authority over matters pertaining to warmaking. In this Article, they move the story forward and systematically examine how the three branches have actually considered and treated this issue from 1789 to the present day. They examine those cases in which the President has asserted or relied upon a claim of preclusive war powers. They also review the discussions of this issue that have appeared in Supreme Court opinions; in major debates on the floor of Congress; and in the leading constitutional and war powers treatises, articles, and books of the past two centuries. This historical review shows that the view embraced by most contemporary war powers scholars – namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns – is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.

Imagine if Boston had only one revenue source: a tax on shopping mall sales. You know what would happen. The city would do everything it could to attract shopping malls in order to pay for schools, police, fire services, and everything else. It wouldn't matter whether the city actually wanted more shopping malls. Shopping malls would have to be encouraged, and the mall tax would influence every facet of city policy. Zoning officials would be attentive to the concerns of mall developers. Transportation policy would focus on the needs of suburban consumers. Requests for security near Bloomingdale's would influence the allocation of police patrols. And residents seeking bonds for low-cost housing or protection against crime in city parks would have a hard time getting heard. These differences matter. Current economic forces reward cities with the ability to respond creatively and flexibly to fast-changing conditions. Urban centers that can't pursue cutting-edge economic development strategies, or respond boldly to the special challenges urban success may bring, risk slipping slowly but surely behind their competitors. Boston's ability to compete in an increasingly globalized market for urban economic development is directly connected to the state's willingness to loosen the reigns of power. Thanks to private innovation, public sector investments, and a good deal of luck, Boston has managed to succeed despite its highly constrained legal structure. But there are troubling signs on the horizon. Again and again, our study found that other cities are using their legal powers to capitalize on their recent successes in ways that Boston cannot. Chicago completed its widely praised Millennium Park with a degree of independence that, as the interminable debates over control of the Rose Kennedy Greenway demonstrate, Boston can only marvel at. Denver has relied on its home rule powers to contain spiraling municipal employment costs in ways that Massachusetts precludes Boston from doing.

Domestic policies and domestic legal rules largely determine the legal status of cities, and these rules have a major influence on both the experience of city life and the practice of local self-government. Today, this traditional way of creating local government law is changing. Parties negotiating international trade agreements, international tribunals arbitrating commercial disputes, United Nations' rapporteurs investigating compliance with human rights obligations, and international financial institutions formulating development policy are expressing interest in the legal relationship between cities and their national governments. This new development is examined by way of three goals. First, it is demonstrated that a focus on international local government differs from other ways in which scholars have begun to think about cities and their place in the world. It is explained that the study of international local government law emphasizes cities' roles as simultaneously subordinate domestic governments and independent international actors. Second, the topic of international local government law is introduced into the field of international law. Focus is on decisions by international arbitration tribunals regulating cities' ability to control land use development. Finally, an analytic framework for evaluating the content of international local government law at this initial stage of its development is proposed.

This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco. The Essay argues against the conventional view that cities either have no distinctive role in interpreting the Constitution or that their interpretations should be considered suspect, even dangerous. But it also contends that cities should generally be permitted to decline to enforce state laws on constitutional grounds, or to challenge their constitutionality in court, only when they do so in order to expand the scope of local policymaking discretion. Thus, the Essay concludes that the problem with San Francisco's disregard of California's marriage laws was not (as the California Supreme Court suggested in Lockyer) that its action was too localist, but rather that it was not localist enough. San Francisco was not seeking freedom from state law so that its officers could adopt a distinct, local marriage policy for San Franciscans. Instead, the city claimed that higher law required all local officers to grant, rather than deny, licenses to same-sex couples seeking to marry. Thus, while San Francisco may have seemed to strike a blow for city power when it took the Constitution into its own hands, a deeper consideration of the controversy suggests that advocates of decentralization should have little reason to cheer the city's actions.

The revival of states' rights may be the most substantial accomplishment of the Rehnquist Court's conservative majority. Cases concerning federalism do not regularly capture the newspaper headlines of hot-button constitutional disputes, but the jurisprudence of the Rehnquist majority has, in fact, been in retreat recently when it comes to affirmative action, abortion, school prayer, gay rights, and even the death penalty. In each area, conservative justices defected, creating de facto liberal majorities. When it comes to states' rights, by contrast, the conservative majority has changed constitutional law dramatically. Not long ago, few propositions could be asserted more confidently in law-school classrooms than that states enjoy almost no constitutional protection from congressional power. Now, the talk concerns increasing restraints on federal power. What may be called "Rehnquist Federalism" has not yet made a revolution, and defections occur in federalism cases, too. But Rehnquist Federalism has changed the legal landscape by limiting congressional efforts to provide everything from effective remedies against discrimination to enforcement of federal statutory guarantees of overtime pay-all in the name of "state sovereignty" and despite the arguments of the four liberals on the Court.

Proponents of regionalism usually blame the recognition of local autonomy, otherwise known as "home rule," for familiar metropolitan problems - housing segregation, the stark divide between rich and poor communities, environmentally destructive sprawl. They say that states have enabled municipalities to act like independent sovereigns and that selfish local policymaking has led to problematic growth in virtually every metropolitan area. Regionalists argue, therefore, that in order to stop individual municipalities from pursuing parochial ends, power must be shifted upwards - if not entirely, then substantially. But regionalists doubt this shift will occur. Why, they wonder, would local communities favor dismantling such an empowering legal structure? We offer a different view. We do not think that local governments have anything like autonomy. Even states that have formal home rule structures place significant limits on local policymaking, and greater-than-local forces exert significant pressure on local choices. It seems implausible, therefore, that local actors understand themselves to be autonomous in any meaningful way. The form of local power most cities and towns possess grants them only limited authority. It is this condition of having limited power - rather than of being autonomous - that underlies the wariness towards regionalism. This condition encourages an insular and defensive mindset that makes regionalism an unattractive risk. The parochialism that regionalists rightly wish to check, therefore, is as much a consequence of the constraints that cities and towns confront as of the powers they possess. This suggests that "defensive localism" - the defense of local power in order to preserve the status quo - rather than "local autonomy" best describes the current form of local power. We find empirical support for this alternative account in a study we recently conducted on home rule in metropolitan Boston. Our research plan was simple. We first mapped the powers that Massachusetts permits local governments to exercise. We then interviewed local officials from the 101 cities and towns located within Boston's metropolitan area. We asked two types of questions: Did the legal structure of local power in Massachusetts confer home rule in the "local autonomy" sense? And, did the local official think regionalism presented an attractive solution to the problems of their community or the region as a whole?

Discusses changing legal responses to eminent domain policies in urban planning. The authors detail recent cases in Illinois and Mesa, Arizona where a court ruled a planning authority's plans to redevelop urban areas as unconstitutional, focus on the legal decisions surrounding the planned expansion of the Metropolitan Airport in Wayne County, and note that the U.S. Supreme Court is considering constitutional reform for eminent domain in the coming year. They highlight the importance of treating eminent domain on a case-by-case basis, suggest how differing definitions of public use complicate the legal response to eminent domain policies, and argues for the importance of effective municipal planning.

Home rule lurks behind every important concern of Greater Boston. Local policies on a wide variety of issues – finance and management, land use, housing, and education – depend on the state grant of home rule. But real local authority in Massachusetts is restricted. Cities and towns have little discretion over taxes, fees, and borrowing, and only fragmented control over their public schools. State government imposes a number of unfunded mandates. State law supersedes local law on all issues, forcing localities to seek special state legislation on matters of immediate concern. Based on interviews with local officials in the 101 towns and cities that make up Greater Boston, the study by David Barron, Gerald Frug, and Rick Su argues one way to open up the possibilities for regional policy is to take the local desire for home rule more seriously. This important work provides a much-needed blueprint to the most fundamental issue of state and local governance in Massachusetts.

Participants in the debate over suburban sprawl regularly refer to "home rule," by which they mean the autonomy that state law supposedly now confers on cities and suburbs. Opponents of sprawl assert that American local government law protects home rule, which results in socially destructive development because it allows localities to pursue their own selfish ends. Therefore, they seek to reduce home rule and to shift policy power to region-or state-level actors. Defenders of home rule, by contrast, celebrate the recognition of home rule for promoting local freedom and choice. Thus, they are wary of anti-sprawl reform. In this Article, Professor Barron argues that this debate wrongly equates home rule with local legal autonomy and, for this reason, that anti-sprawl reformers are unduly hostile to local power. Professor Barron begins by showing that the late-nineteenth-century urban reformers involved in the first home rule movement did not seek local legal autonomy. Rather, they sought - through competing packages of grants of, and limits on, local power - to enable cities to promote visions of urban governance that the prior legal regime had foreclosed. Drawing on this more complex conception of home rule, Professor Barron then shows that what now passes for home rule is itself a mix of grants of, and limits on, local power. Indeed, he argues, in its current form, home rule does more to frustrate the ability of cities and suburbs to pursue anti-sprawl policies than to protect local autonomy. Professor Barron then sets forth an approach to anti-sprawl reform that seeks to reclaim, rather than reduce, home rule. To that end, he explains how state law now limits the ability of local governments to fight sprawl, partly through constraints inscribed in the very state constitutional provisions that purport to grant home rule and partly through state law's recognition of certain local legal entitlements. Finally, he identifies legal changes that could expand the power of cities and suburbs to address regional problems like sprawl.

Do the horrifying terrorist attacks of September 11 signal a new era of anti-urbanism? The question might, on first inspection, seem absurd. Cities have been bombed before and survived. They have been leveled and conquered and they have endured. Cities have even thrived in the wake of the devastation wrought upon them. The reasons that cities grow or shrink, in the end, are simply too variegated to be traced to a single casual factor. Thus, we would not be inclined to take seriously the question whether September 11 will mark the beginning of a decline in the fortunes of urban spaces had so many people in positions of influence not been committed to convincing us of just that proposition. These analysts have argued that the attacks—devastating one of the nation's most visible urban symbols—show that the iconic city center is no longer a viable institution of social life. The only wise course, they have suggested, is to spread out, to empty the urban core, to sprawl. At the very least, they have argued, this is inevitably the message that most people will take from the attacks. Even if prudence does not demand more far-flung development, market forces will dictate that the escape to the suburbs will proceed with a new vigor in the wake of the destruction of the World Trade Center. This essay situates these contentions within a broader way of thinking about urbanism. We show that the assertions about the post-September 11 world are quite similar to arguments that have long been offered to suggest the virtues (or at least the inevitability) of the pattern of sprawl that has dominated our landscape since World War II. These arguments draw upon a familiar and well-developed rhetoric that makes sprawling development seem to be the consequence of individuals making rational decisions to disperse in order to vindicate their "self-interest." In response, many have drawn upon an equally well- developed rhetoric that seeks to privilege urban spaces over suburban ones by emphasizing the ways that central cities might win in the unavoidable competition with suburbs.

Barron challenges the court-centered approach to the scope of the President's non-enforcement power. He contends that a President, notwithstanding that he considers himself bound by the Supreme Court's constitutional interpretations, should resolve three distinct questions in determining whether he may faithfully decline to enforce a statute by virtue of its unconstitutionality.