Harvard Journal on Legislation

by lzigerelli on June 10, 2022

Volume 59, Number 2

Policy Essay
Pulling Back the Curtain on PBMs: A Path Towards Affordable Prescription Drugs Representative Earl L. “Buddy” Carter	257

Articles
The Untapped Potential of the Congressional Review Act Jody Freeman & Matthew C. Stephenson	279
Prepaid Death Victoria J. Haneman	329
Captive Generics: The Wolf in Sheep’s Clothing Robin Feldman	383

Note
Occupational Licensing: The Path to Reform Through Federal Courts and State Legislatures Tzirel Klein	428

by sbreggia on May 30, 2022

Subnational Diplomacy: The Key to Strengthening U.S. International Relations

Representative Ted Lieu*

I. INTRODUCTION

When SARS-CoV-2 (“COVID-19” or the “coronavirus”) began spreading in the United States in early 2020, it quickly became apparent that we were facing a global crisis with consequences for our local communities. The Trump White House decided early in the pandemic to cede most decision-making to the states and local municipalities.¹

That approach was not illogical. Community health departments and local governments have a good grasp of the unique demographics in their areas and can be quicker to respond to challenges as they arise. But for that strategy to work, state and local governments needed significant support. Unfortunately, the hands-off, uncoordinated approach from the federal government meant local governments did not have the time and resources they desperately needed to crush the virus.²

In confronting a pandemic that did not care about geographic boundaries, local officials were often forced to improvise without help from the federal government. States opted to coordinate with each other³ and with foreign counterparts.⁴ Some states struggled to track down adequate personal protective equipment (“PPE”) for healthcare workers⁵ while others pleaded for federal and international help to expand testing.⁶ In many ways, the pandemic demonstrated that the national government cannot always be as nimble as city and state governments can be when it comes to responding to crises.

While international relations is mainly the responsibility of national governments, diplomacy can be practiced at every level of government. Crises such as COVID-19 and difficult global issues like climate change present opportunities for subnational diplomacy—diplomacy conducted by officials at various levels of government below the national level—to overcome barriers that have national governments stuck in the mud. From governors to mayors to tribal leaders, relationships between officials at the subnational level have and will continue to open multiple diplomatic channels.

At the height of the pandemic, the lengths to which local leaders were willing to go to secure supplies for their communities was staggering. In April 2020, Illinois Governor J.B. Pritzker coordinated a secret charter plane to bring PPE from Shanghai, China. Governor Pritzker’s plan was meant to circumvent the Trump administration’s alleged seizing of PPE shipments from abroad.⁷ A hallmark of the desperation and supply chain challenges at the time, the state of Illinois was forced to hand million-dollar checks to intermediaries in parking lots to get more masks, gloves, and gowns for healthcare workers.⁸

Perhaps the most high-profile example of subnational diplomacy on the fly occurred in Maryland. Governors like Larry Hogan, who were left on their own to address the ever-worsening crisis, were desperate to build up testing and contact-tracing programs. At the time, testing was considered the key to containing the pandemic.⁹ The initial flaws in the federal Center for Disease Control’s tests set the country back by months in terms of containment, and South Korea had a far more effective testing apparatus than the United States. Hogan and his wife made a direct ask of Korean President Moon Jae-in, touting the “special relationship between Maryland and the Republic of Korea.”¹⁰ When the tests arrived in Maryland, the Governor called it “Operation Enduring Friendship” and touted his diplomatic efforts to secure 500,000 COVID-19 tests from South Korea.¹¹

Meaningful, high-profile subnational diplomacy existed well before the pandemic.¹² For example, during the Cold War, communities around the country used their local political power to vocalize opposition to nuclear armament.¹³ In the 1980s, upwards of 4,000 communities in seventeen countries, including the United States, declared themselves “nuclear-free zones” in response to escalating tensions between the United States and the Soviet Union.¹⁴ In 1987, 700 United States mayors and city council members gathered at the National League of Cities Congress in Las Vegas and signed onto the Nevada Declaration, which called for a national ban on nuclear testing.¹⁵

Today, over fifty-five percent of the world’s population live in cities.¹⁶ That number is expected to climb to sixty-eight percent by 2050.¹⁷ Some local leaders oversee economies comparable to those of entire countries. Large cities and counties are claiming more and more economic power in the United States, with one percent of counties in the United States accounting for one-third of the country’s gross domestic product (“GDP”) in 2018.¹⁸ Los Angeles County, for example, has an output of $710.9 billion GDP, the equivalent of Saudi Arabia.¹⁹ The state of California is the fifth-largest economy in the world, making its GDP larger than that of the United Kingdom and Russia.²⁰

Rural jurisdictions and states with rural areas have also benefitted from subnational diplomacy. Foreign officials routinely visit agricultural areas and ink contracts for various agricultural products.²¹ When the Director General of the Hebei Provincial Agricultural Department visited the United States to discuss agriculture and animal husbandry, did he visit the State Department in Washington, D.C.? No, he went to Kansas and met with the Kansas Department of Agriculture and Kansas Department of Commerce.²²

When subnational actors join forces, they can have an undeniable and far-reaching impact. The C40 Cities Climate Leadership Group, a coalition of 97 cities from around the world committed to addressing climate change currently chaired by the Los Angeles Mayor, represents more than 700 million people and a quarter of the global economy.²³ This subnational effort to address climate change represents a large movement by local leaders to find commonality with foreign counterparts to advance shared goals, even in the face of stalled efforts at the national level. We have seen these principles apply to local responses to the pandemic as well.

The COVID-19 pandemic demonstrates in the starkest terms what happens when local governments do not have the federal support to address a crisis. It also shows us that states and local governments are already coordinating with foreign counterparts and will continue to do so. What is missing is direct and explicit federal support to help achieve shared goals. In the case of COVID-19, coherent federal support in the diplomatic space would have meant local governments would have had access to information and potentially resources from allies abroad contending with outbreaks in their communities. That type of knowledge-sharing may have saved lives and offered valuable insight into the United States’ COVID response. Instead, the patchwork of local responses left our communities vulnerable to outbreaks. There is much that cities and states can—and already do—learn from other countries through diplomacy, and the federal government has the tools, knowledge, and resources to expand those efforts.

While subnational diplomacy has become increasingly prevalent in United States cities and states as mayors and governors recognize the power of international cooperation for their constituents, the federal State Department has no dedicated structure to support these local efforts to engage with the international community. In 1979, the State Department created an Ambassador-at-Large for Liaison with State and Local Government.²⁴ But since then, these functions have been folded into a parade of temporary stand-alone offices or into the Bureau of Public Affairs.²⁵ This lack of focused federal support for city and state governments is the reason for the City and State Diplomacy Act,²⁶ which will support state and local diplomacy with counterparts abroad. The bill will establish an office of city and state diplomacy at the State Department, which will coordinate overall United States policy, programs, and resources in support of city and state engagement with foreign governments and officials. This is a vital tool for our democracy because it ensures a coordinated effort between local officials and the State Department, thereby streamlining and strengthening both federal and local diplomatic aims.

The pandemic has provided a lens through which to view the value of subnational diplomacy. It does not undermine national level diplomacy but rather enhances it. By leveraging federal resources to support cities and states, the State Department can advance foreign and domestic policy goals relating to economic prosperity and geopolitical stability—and help local governments reap the full benefits of foreign engagement in the process.

The City and State Diplomacy Act also provides two other benefits. It helps us push back on near-peer competitors like China that use a whole of government approach to achieve their objectives, by giving United States state and local leaders the tools and knowledge needed to navigate pressure and exploitation by foreign officials. And it helps diversify and increase the actors involved in our nation’s foreign policy. Instead of just having one federal department with a limited number of overworked foreign service officers and ambassadors (with relatively few minorities),²⁷ we can leverage the expertise, talent, and energy of tens of thousands of city, county, and state officials from around the country who are going to be engaged abroad with or without federal support.

by dhimelman on May 23, 2022

Scattershot: Guns, Gun Control, and American Politics

Maria Mortenson*

INTRODUCTION

In 1967, the Black Panther Party for Self-Defense sold Mao’s Little Red Book to raise money to buy guns.¹ The Panthers traveled from Oakland to the University of California, Berkeley, where they sold the books to aspiring student communists in the campus center.² Huey P. Newton’s sales pitch? “Power comes out of the barrel of a gun. Quotations from Chairman Mao Tse Tung. Get your Red Book.”³ The Panthers soon had enough money to purchase shotguns, pistols, and semi-automatic rifles,⁴ which, in the spirit of self-defense, they carried proudly during their combative patrols of Oakland’s police force.⁵ As Bobby Seale recalled in his memoir, Seize the Time, Newton “studied those law books, backwards, forwards, sideways, and cattycorners; everything on gun laws” to ensure that the Panthers were obeying California law.⁶ But their patrols were in danger.

The Panthers had attracted the attention of Don Mulford, a Republican state representative from Oakland. That April, Mulford threatened to “get” the Panthers by making their patrols illegal.⁷ He quickly followed through, introducing a bill to prohibit Californians from carrying loaded firearms “in any public place.”⁸ The Mulford Act, which remains effective in California, was signed into law by then-governor Ronald Reagan after the Panthers staged a daring armed protest of Mulford’s proposed bill at the California State Capitol.⁹

Today, many liberals view gun control as an unmitigated good. During campaign season, Democratic politicians use gun control as a powerful political tool to energize their supporters. In 2019, when Beto O’Rourke declared that, “Hell, yes, we’re going to take your AR-15, your AK-47,” during a presidential primary debate, the audience cheered so loudly that he had to shout to finish his sentence.¹⁰ Conservatives, for their part, tend to be hostile towards gun control.¹¹ After O’Rourke’s debate performance, Lauren Boebert, now a freshman representative from Colorado,¹² confronted O’Rourke at an Aurora, Colorado town hall.¹³ Her response to O’Rourke’s proposed assault weapons buyback program? “Hell no.”¹⁴ Over a heckling crowd, Boebert pressed on to ask how O’Rourke planned to “legislate evil.”¹⁵ As Boebert saw it, the cause of crime “is not the gun, it is the heart of the man that does that.”¹⁶

Absent from this debate is any recognition of the reality that, since before America’s founding, firearms regulations have disproportionately restricted black Americans’ access to firearms.¹⁷ The Mulford Act’s racially-motivated approach to gun control was, in short, not new. Indeed, as early as 1680, Virginia forbade all black residents, both free and enslaved, from possessing weapons of any kind.¹⁸ Although the state subsequently loosened this restriction out of concern for its vulnerable frontier properties, gun ownership by Virginia’s black population remained subject to regulation.¹⁹ Across the country, laws that explicitly predicated gun ownership on race coexisted with limitations on gun use in urban areas and regulations of gunpowder storage.²⁰

Although no jurisdiction would condition gun ownership on race today, modern gun control was built on this dual approach: seeking to control America’s black population on one hand, while addressing practical safety problems on the other. The Mulford Act and the federal Gun Control Act of 1968 showed that racialized fear was an important motivating factor behind the legislation that constitutes our modern gun control regime. Both laws aimed to promote public safety yet pursued this goal by making guns inaccessible to disfavored groups. The Mulford Act’s prohibition of open carry targeted the Black Panther Party,²¹ while the Gun Control Act made it a crime to sell a gun to convicted criminals, drug addicts, and any person deemed “a mental defective.”²² These categorizations of gun use and ownership served as rough proxies for dangerousness and resonate with today’s discourse on gun control, focused as it often is on mental illness and mass shootings.

Gun control’s racial history is obscured by today’s partisan divide. What’s more, the partisan split over gun control is deeply inconsistent with both parties’ other positions. Democrats’ eagerness to restrict gun ownership conflicts with their embrace of other personal freedoms, such as abortion access and sexual liberty, and runs up against liberal aspirations to shrink the criminal justice system. In a time when many Democrats decry mandatory minimum sentencing and racially disproportionate criminal punishment, proposals for gun control legislation that incorporate harsh minimum sentences—like Representative Sheila Jackson Lee’s (D-Tex.) proposed federal firearms registration and licensing system²³ —seem incongruous, an uncomfortable reminder of Democrats’ prior “tough on crime” stance. For their part, Republicans’ anti-regulatory stance is consistent with libertarianism, but in tension with mainstream conservatives’ comfort with safety-promoting laws. After all, most abortion regulations, a perennial Republican project, are passed to protect unborn life and (perhaps pretextually) promote women’s health.²⁴ Those interested in overcoming the current deadlock on gun control would do well to consider whether legislating to criminalize supposedly “dangerous” gun use in fact promotes public safety for society writ large.

by sbreggia on April 7, 2022

A Conservative Approach to Early Childhood Education: Building on the Foundations of Success & Boosting Academic Achievement Through Choice

Representative Burgess Owens*

I. INTRODUCTION

As the son of an educator and a grandfather to sixteen school-aged children, I believe that Early Childhood Education (“ECE”) is essential for many reasons, one of which is that ECE simultaneously provides support for children to learn, for parents to enter the workplace, and for future generations of American workers to grow. I have seen the importance of ECE firsthand as a father and grandfather, as well as in my role as Ranking Member of the House Subcommittee on Early Childhood, Elementary, and Secondary Education.

Raising children is one of the most rewarding and challenging experiences in a person’s life. As part of that process, ensuring that children have a solid start is the first step to helping them grow and develop. One of the most important tools at a parent’s disposal is ECE, access to which has significant impact on the foundations that are built for children from birth to fifth grade.¹ The impact of high-quality early education on childhood development and beyond cannot be overstated. Americans of all political stripes, alongside local municipalities and private sector partners, must work together to support a strong child care sector that assists hardworking American families.

The COVID-19 pandemic dealt a significant blow to child care, in-person education, and the American workforce. When most of the economy was shut down, schools and child care centers also shut down.² As the pandemic wore on, many schools remained closed, but child care providers worked to remain open or reopen because they recognized their importance in keeping America going and helping families and children succeed.³

When combating these challenges, we must remember that the beginning years of a child’s life are the building blocks upon which they rely on to create a bright future. Without access to high-quality care, as defined by meeting the specific needs of each child, it is often more difficult for parents to go to work or further their own education. Access to ECE in America will help determine the success of future generations. It is imperative that we think outside the box and focus wholly on children by protecting parental choice, saving taxpayer dollars, and prioritizing the future workforce of America. The time to work together for bipartisan childcare solutions that encompass program alignment across federal, state, and local governments is now. We have no time to waste—parents are waiting, children are growing, and our nation is falling behind as a leader in education.

by lzigerelli on March 2, 2022

Volume 59, Issue 1

Policy Essay
Law Labor Reform at a Critical Juncture: The Case for the Protecting the Right to Organize Act Representative Andy Levin & Colton Puckett	1

Articles
Strengthening the Federal Approach to Educational Equity During the Pandemic Kimberly Jenkins Robinson	35
Sunsets are for Suckers: An Experimental Test of Sunset Clauses Kristen Underhill & Ian Ayres	101
Are State Public Option Health Plans Worth It? Jaime S. King, Katherine L. Gudiksen, & Erin C. Fuse Brown	145

Note
The LEARN Act: A Bipartisan Legislative Proposal to Advance Educational Opportunities for Immigrants and English Learners Christopher Cruz	223

by sbreggia on December 4, 2021

Legal Constraints on Executive Power to Manage Agency Vacancies

Lauren Shapiro*

I. INTRODUCTION

Throughout the history of the Republic, high-level government offices have often gone unfilled for periods of time.¹ Such vacancies occur for a variety of reasons—perhaps the President has failed to nominate a permanent officeholder, the Senate has stalled on a nominee’s confirmation vote, or the original confirmed officeholder has died, resigned, become sick, or been fired.² Historically, regardless of the reason, extended vacancies for top positions requiring Presidential nomination and Senate confirmation (“PAS” positions) have been rare.³

The Trump administration departed from this trend: it faced more vacancies for PAS positions—and filled them with longer-serving acting officials—than any prior administration for which data exists.⁴ Acting officials, who are not Senate-confirmed to the relevant position, occupied several high-level posts for years during the Trump administration.⁵ Some positions, such as the State Department Special Envoy for North Korea Human Rights Issues, remained perennially vacant.⁶

Under the Federal Vacancies Reform Act of 1998 (“FVRA”), extremely long tenures of acting officials such as these must eventually come to an end. Pursuant to the FVRA, when the permissible period for acting service expires, the PAS position again becomes vacant, and “only the head of [the] agency may perform any function or duty of [the] office.”⁷ If someone other than the head of the agency performs the functions and duties of the again-vacant office, the resulting actions will be rendered void ab initio.⁸

Policy Essay

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Policy Essay

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