Federalism Vs. States' Rights: A Defense of Judicial Review in a Federal System (original) (raw)
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The goal of this Essay is to construct an account of the American federal system organized around its structural and relational components and to develop an initial delineation of what I call the politics of sovereignty of the American constitutional order—the patterns of political behavior and discourse, the relationships, and the institutional interactions that characterize and decisively shape debates over the scope and location of government power. That account and the politics it structures, I will argue, are necessarily dynamic. An ancillary goal of this Essay is to illustrate some of the implications and requirements of the account of the federal system that I offer. That is attempted through a close analysis of the “basic principles” announced by Chief Justice Roberts in his opinion in National Federation of Independent Business v. Sebelius (NFIB). Part I sets forth the structural components and institutional arrangements of the federal system. A review of the constitutional logic of federalism and mechanisms designed to preserve the federal bargain demonstrates that the federal system is underdeterminate, that is, that it fixes no single division of power between levels of government and instead permits a range of potential state-federal relationships within permissible constitutional bounds. In Part II, I examine the notion of “attachment” in both the The Federalist and the writings of several prominent Anti-Federalists. I argue that the attachment of the people—their connections and commitments to a government—is a crucial determinant of the configuration of state and national power, which configurations are enabled by federal underdeterminacy. In Part III, I critically evaluate the “basic principles” of the state-federal relationship articulated by Chief Justice John Roberts in his NFIB opinion. I argue that his, and to a large extent the Court’s, understanding of the federal system entails denying both constitutional underdeterminacy and the consequences of the variability of the people’s attachment to their governments. Here I devote the most attention to the canon of constitutional avoidance, which the Court employed to uphold the Individual Mandate as a lawful exercise of Congress’s taxing power. After a sustained critique of the use of the canon in NFIB, I conclude by describing an alternative model of judicial review—which I call processual review—that is at once consonant with the understanding of the federal system offered in Parts I and II and yet distinct from the process-based theories offered by scholars like Herbert Wechsler, Jesse Choper, and Larry Kramer.
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.
Rethinking Constitutional Federalism
2013
and participants in a faculty workshop at Northwestern University School of Law for their valuable comments on an earlier draft of this Article. I am also grateful to the Stanford Clinton, Sr. Faculty Fund for research support. 1. 115 S. Ct. 1624 (1995). 2. Id. at 1626 (quoting U.S. CONST. art. I, § 8, cl. 3). 3. Judicial support for this position includes the three strongly worded dissents in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), by Justices Rehnquist, O'Connor, and Powell. Chief Justice Rehnquist and Justice O'Connor were among the five justices who arguably re-established it as the reigning view last term in Lopez. Among the many scholarly commentators who subscribe to this position are MARTIN H. REDISH, THE CONSTITUTION AS POLITICAL STRUcTURE23-61 (1994);
Federalism and Separation of Powers: Two Natures of State
Unpublished paper, 2016
This brief paper discusses the aforementioned issues while considering the article of Krane and Koenig (2005) titled The State of American federalism, 2004: Is federalism still a core value? , as well as other related resources. It is not a comprehensive analysis, but a provoking idea to start more lengthy discussion. The purpose is to reveal a further discussion about the concept of the “state” and its complex consequences following.
Tulsa Law Review, 2012
American constitutional federalism suffers from a surfeit of text and a deficit of function. Depending on how one counts, the constitutional text of the 1791 Constitution defining the state governments' reserved powers occupies more than 450 words (in Article I, Section 8 and the Tenth Amendment)roughly ten percent of the 1791 Constitution's approximately 4,500 words. 1 Yet neither courts nor commentators have much to say about what purpose this elaborately exclusive definition of Congress' powers is supposed to accomplish. This is not to say that courts and commentators have nothing to say about the general "values of federalism." Such catalogues of the "values" that robust subnational governments are supposed to advance are a common fixture of both judicial and scholarly commentary on constitutional federalism. 2 These "values of federalism," however, suggest only that a subnational government of some sort might be useful without saying anything usefully specific about which sort of federalism our Constitution creates. Like "individualism," "federalism" is an umbrella under which lots of sometimes mutually contradictory conceptions of law huddle: praising them all is to say nothing usefully specific about any. Michael Greve's The Upside-Down Constitution 3 aims to end the functional vacuity of our federalism. As he trenchantly notes, "federalism is a 'they,' not an 'it."'" Some forms of subnational power are beneficial, some harmful and conflating, and praising them all is intellectually vacuous. Instead, Greve makes the case for a specific type of federalism-what he calls "competitive federalism." 5 Our constitution's ground rules for dividing power between state and federal governments are well-suited for "alleviat[ing] the government monopoly problem" 6 by creating multiple subnational jurisdic
Constitutionalism and the Many Faces of Federalism Author(s): Koen Lenaerts
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. This content downloaded from 137.56.81.167 on Mon, 09 Nov 2015 07:09:48 UTC All use subject to JSTOR Terms and Conditions KOEN LENAERTS Constitutionalism and the Many Faces of Federalism As a system of divided powers, federalism proceeds from the very essence of constitutionalism', which is limited government operating under the rule of law.2 This article argues, on the one hand, that it is the proper function of the federal constitution, umpired by the federal judiciary, to strike the appropriate balance of powers between the federation and its component entities3, and on the other hand, that beyond this KOEN LENAERTS Judge, Court of First Instance of the European Communities, and Professor of European Community Law, University of Leuven (Belgium). This article is the revised version of a paper delivered at the Harvard Law School colloquium on "Constitutionalism: The American Experiment in Wider Perspective", organized in observance of the bicentennial of the United States Constitution (April 6-9, 1989).