This article explains a rising trend in American politics: the increasingly prominent role the state attorneys general (AGs) play in challenging federal policies. It focuses on one particularly important case—Republican efforts to overturn the Affordable Care Act in Texas v. California. We consider how state AGs and solicitors general (SGs) drive policy efforts through litigation and the factors that contribute to their participation. We find, first, that although members of the out-of-power party in Washington are the ones who typically bring state lawsuits, the Texas litigation demonstrates that these lawsuits are also a vehicle by which members of the party in power try to achieve goals that are otherwise unattainable through the legislative process. Second, Republican AGs submerge partisan arguments in “constitution-talk” with the aim of achieving a policy goal that was defeated democratically. We reach these conclusions through content analysis of AG press releases and semi-structured interviews with litigators and other elite actors.

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This article examines the institutional development of the U.S. Court of Claims (USCC), in order to shed new light on the nature of constitutional and institutional change in the early Republic. From the founding period through the mid-nineteenth century, members of Congress believed that empowering other institutions to award claimants monies from the Treasury would violate two core doctrines: separation of powers and sovereign immunity. However, as claims against the government ballooned over the first half of the nineteenth century, Congress fundamentally changed its interpretation of the Constitution's requirements in order to create the USCC and thus to alleviate its workload. This story of institutional development is an example of constitutional construction and creative syncretism in that the institutional development of the USCC came from continuous interactions among political actors, working iteratively to refashion institutions capable of solving practical problems of governance. This close study of the court's creation shows something important about American constitutional development: Certain fundamental ideas of the early Republic, including sovereign immunity and separation of powers, were altered or jettisoned not out of some grand rethinking of the nature of the American state, but out of the need to solve a mundane problem.

This article challenges the conventional wisdom about of the Supreme Court’s impact on federalism and centralization. In particular, we argue that the centralization impact of the Court is far less pronounced if decisions that uphold federal and state/local laws against challenge are classified as neutral rather than as centralizing and decentralizing, respectively. This reclassification dramatically alters our understanding of the Court’s role in establishing federal–state boundaries of power. After presenting our theoretical arguments, we briefly discuss the potential empirical effects of these revisions. Our analysis calls into question the traditional picture of the Court as a consistent force for centralization. It also challenges the conventional wisdom about the Court’s impact on centralization during specific key periods of American history.

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