If 2011 is remembered as the year the states stood up to the Obama Administration and its bold vision of federal power, Paul Clement will be remembered as the lawyer they chose to make their case to the Supreme Court. In addition to the healthcare challenge, Clement appeared on behalf of Arizona in defense of the State’s sweeping new immigration law and helped Texas defend its new electoral map against interference from the federal courts. Along the way, he became the go-to lawyer for the states’ rights cause--a “shadow Solicitor General” leading the states in their push to reclaim power from the federal government.
This essay reconciles the perception of Paul Clement as a champion of states’ rights with his less-visible work on behalf of the business community—work that, because of the pro-federal slant of the business agenda, often puts him at odds with the states’ rights movement. I will demonstrate that, despite the publicity he’s gained for his high-profile federalism cases, Clement has done more than most private lawyers in recent memory to undercut the states' rights agenda. More broadly, I will argue that the tension within his caseload—the push and pull federalism and deregulation--reflects a broader rift within the conservative legal movement. Exploring this rift through the lens of Clement’s work, I will consider whether legal conservatism can still embrace the conflicting tenets of federalism and deregulation.
Available at: http://works.bepress.com/sam_singer/1/