Waivers, Federalism, and the Rule of Law (original) (raw)
Related papers
2011
State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law. We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress's decisions to delegate implementation duties to states should affect how ambiguous statutes should be interpreted. For theories of federalism, state implementation raises a different question, namely, whether this "intrastatutory federalism"-an informal federalism that comes from the inside of federal statutes-is something that doctrine should protect. The prevailing functional and sovereignty accounts of federalism seem less relevant for a federalism that comes at the grace of Congress; this federalism belongs to the domain of statutory interpretation. This Essay argues that state implementation of federal law plays many different roles, and that those differences should affect both how statutes are interpreted and how they are conceived from a federalism perspective. Sometimes state implementation effectuates traditional federalism values like experimentation, but at other times it seems to serve more nationalizing functions, like statutory entrenchment and even federal law encroachment. This variety poses challenges for legislation doctrine, because the prevailing canons of interpretation are not designed to capture such differences, and it illustrates that the broad category of cooperative federalism is more nuanced than commonly acknowledged. author. Associate Professor of Law and Milton Handler Fellow, Columbia Law School. Many of the ideas in this Essay arose in response to Bill Eskridge and John Ferejohn's terrific book, A Republic of Statutes, and also took shape in conversations with Alan Weil. Many thanks to Bill, John, and Alan, and also to
Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists' Gamble
Fordham Law Review, 2013
How can the states retain relevance in an era of federal statutory law? The persistence of the states and our enduring attachment to "federalism" in an increasingly national and global regulatory environment has occupied the minds of many scholars.' For the most part, however, the U.S. Supreme Court, because of its role as the final expositor of constitutional meaning, has been viewed as the primary arbiter of what federalism is and what is required to protect it. Less often explored has been Congress's role in giving meaning to federalism in the modem administrative state. 2 Specifically, the possibility to which this Essay wishes to draw attention is that federal statutes may now be the primary way in which state power is created and protected. To be clear, the claim is not about federal statutes that are modest in ambition and leave most areas exclusively to state regulation. Rather, the claim is about major federal statutes that, even as they extend federal power, entrust to the states much of their implementation and elaboration.
Making America Stronger: Returning Federal Regulations Back to the States
This Op-Ed explores the philosophical and practical implications of decentralizing federal regulations in the United States. Drawing from identity philosophy (Michel Foucault and Simone de Beauvoir) and public philosophy through narrative (Barry Lam and David Foster Wallace), it argues that state autonomy fosters tailored governance, innovation, and civic engagement. By rebalancing the relationship between federal and state powers, this piece advocates for a system that respects the cultural and economic identities of states while reducing inefficiencies and overhead costs. A call to action is presented to explore innovative approaches, such as allowing states to negotiate participation in federal programs, to strengthen democracy and empower communities. This work invites feedback on the integration of philosophical principles with actionable policy suggestions.
Federalism and the Right to Decide Who Decides
Villanova Law Review, 2019
Federal laws sometimes preempt all state policies except those created by legislative enactment. For example, under the Welfare Reform Act of 1996, states cannot give public benefits to undocumented immigrants unless the state legislature enacts a statute that does so. Such laws effectively compel states to delegate their sovereign decision-making power to one entity within a state’s government (like the legislature) rather than others (like the courts). This article argues that using the preemption power to push decisions into state legislatures is unconstitutional. It is similar to the problem with Congress commandeering state officials by making them implement federal regulatory programs. Both practices involve Congress regulating states directly, as opposed to regulating individuals. The only difference is that instead of requiring specific behavior from state officials, Congress is dictating what H.L.A. Hart called “secondary rules”: meaning, here, rules about who has the power to make rules. It’s as if a state created an official to decide which branch of state government should handle any given policy question—a Delegator General—and Congress passed a statute dictating the outcome of that official’s decisions. This article considers the arguments that might be made in defense of delegation-forcing preemption, and finds them unconvincing.
A Hiatus in Soft-Power Administrative Law: The Case of Medicaid Eligibility Waivers
SSRN Electronic Journal
David A. Super* Administrative law, more than any other branch of public law, always has been characterized by a delicate mix of hard and soft power. Political appointees can overrule career staff, but the system makes that cumbersome and they rarely do. In part that is because career staff can substitute their own policy preferences for those of their agencies' political leaders, but the system makes that difficult and they rarely do. Congress can override agencies' interpretations of statutes, but it lacks the resources to do so routinely and it rarely does. Courts, too, have developed a nuanced approach toward exercising soft power to vindicate important norms. To be sure, courts have maintained a formidable arsenal of hard-power weapons, but they make a point of rarely using them. Many of the most celebrated administrative law cases involve courts deferring to the substantive or procedural judgments of agencies. Even in those relatively rare cases where courts do interfere with an agency's actions, the Court has made a point of not precluding the agency from persisting in its chosen course. The Court rejected the SEC's first foray against the Chenerys, 1 but it allowed the second. 2 And agencies typically can take the hint: although the Court did not construe the statute to prohibit building a highway through Overton Park, 3 but its strong skepticism was enough to get the Department of Transportation to change course. 4 The maintenance of a soft power regime of administrative law depends on a certain broad structural consensus. Career staff must accept the legitimacy of political appointees; political appointees must assume that career civil servants will take seriously their directions, subject to constraints of law and feasibility but not personal ideological disagreement. Courts must believe that agencies' actions reflect the considered judgment of career officials making good-faith efforts to follow the law. In several ways, this structural consensus depends significantly on the repetitive nature of administrative law interactions. Career staff know that, over time, they will have to work with political appointees of both parties; their success and longevity depends on being perceived as honest brokers by whomever the political process sends their way. In addition, to the extent they find one set of political guidance distasteful, they can look forward to new political masters whose preferences are more to their liking. Congress refrains from overturning every action it dislikes because it does not want to demoralize agencies it needs to carry out its initiatives in other areas. Courts assume that agencies will not act outlandishly lest they damage their reputation and imperil their chances in their inevitable future litigation. It follows, then, that when this structural consensus frays, the soft-power regime of administrative law will become unworkable. This is particularly true where key actors cease to be, or cease to regard themselves as, long-term repeat players. Instead of a heavily iterated prisoner's dilemma, in which numerous strategies will lead both players to cooperation, we move to individual games, in which the incentives to defect selfishly are quite powerful. This essay argues that we have entered such a period of dissensus about the structure of the administrative state. The current Administration, in word and deed, has rejected the broad structural consensus about the means and limits of administrative law that has existed since the New Deal. Perhaps even more crucially, it has acted, and has come to be regarded by other important actors, as temporally discontinuous from its predecessors and from any successors that do not share its policy views. With a President often sharply estranged from much of his own party, facing catastrophic polling from its early days, and under
Challenging Federalism: How the States’ Loud Constitutional Provocation is Being Met with Silence
Journal of Legislation, 2018
, Federalist No. 80 "The fact that the Paris deal hamstrings the United States while empowering some of the world's top polluting countries should expel any doubt as to why foreign lobbyists should wish to keep our beautiful country tied up and bound down. .. That's not going to happen while I'm president, I'm sorry."-President Donald J. Trump "Trump is AWOL, but California is on the field, ready for battle."-California Governor Jerry Brown † J.D. Candidate, Notre Dame Law School, 2019. The author is grateful for the editorial staff on the Journal of Legislation for helping shape this Note with their detailed editing and insightful comments. Special thanks to Professor Nicole Garnett and Professor William Kelley for providing an initial framework for this paper. Lastly, the author would also like to thank her family, and her father George in particular, for their unwavering support.
Journal of Health Politics Policy and Law, 2007
Executive federalism emphasizes collaboration between the executive branches at the national and state levels to transform grant programs through the implementation process. In this regard, Medicaid demonstration waivers loomed large during the presidencies of Bill Clinton and George W. Bush. This article docu- ments and compares the volume and substance of section 1115 Medicaid waiver activ- ity under the two