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Abstract:
How easily should courts infer that federal statutes preempt state law? An ongoing debate exists on the question in Congress and among scholars and judges. One side calls for judges to protect federalism by adopting a rule of statutory construction that would bar preemption absent a clear statement of preemptive intent. Opponents argue against such a "clear statement" rule by arguing that state control over preemptable topics is often presumptively inefficient, because common-law juries lack expertise and because states are prone to imposing external costs on their neighbors.

This article sidesteps these debates over preemption and instead argues that, quite apart from whether state law is itself efficient, an anti-preemption rule of statutory construction has benefits for the national law-making process. Because of the size and heterogeneity of the population that it governs, Congress has institutional tendencies to avoid politically sensitive issues, deferring them to bureaucratic resolution, and instead concentrating on constituency service. Non-federal politicians can disrupt this tendency to ignore or suppress political controversy, by enacting state laws that regulate business interests, thus provoking those interests to seek federal legislation that will preempt the state legislation. In effect, state politicians place issues on Congress' agenda by enacting state legislation. Because business groups tend to have more consistent incentives to seek preemption than anti-preemption interests have to oppose preemption, controversial regulatory issues are more likely to end up on Congress' agenda if business groups bear the burden of seeking preemption. Moreover, the interests opposing preemption tend to use publicity rather than internal congressional procedures to promote their ends. Therefore, by adopting an anti-preemption rule of construction, the courts would tend to promote a more highly visible, vigorous style of public debate in Congress.

Federalism, Preemption, Congress, Interest Groups, Legislation

Abstract:
This paper explores the theoretical justification for providing "private governments" with constitutional rights. Private governments are any private organizations or institutions (parents, churches, non-profits, unions, for-profit firms, etc.) that can use their control over property, membership, or employment to influence their members. The paper argues that conventional wisdom in constitutional theory regards constitutional rights as protections for individuals' self-regarding acts. Such a theory of rights is incapable of generating a persuasive justification for why private organizations should enjoy constitutional rights.

This paper argues that rights can better be understood in an "institutionalist" way, as allocations of governmental power to institutions that are, because of their internal structure, incentives, or culture, likely to exercise that power in ways appropriate for the social setting that they govern. The considerations that ought to define the rights of private governments (and, the paper maintains, rights more generally speaking) are identical to the "structural" considerations that determine whether and how to enforce constitutional principles like separation of powers and federalism. The critical consideration should be whether the private organization has the level of decentralization, democratic accountability, internal incentives, etc., that make it an appropriate government for its assigned area of social life. To illustrate how institutionalist reasoning might affect the way in which courts evaluate the constitutional rights of private government, the paper explores two recent U.S. Supreme Court decisions (Troxel v. Granville dealing with parental rights to control the upbringing of children) and Boy Scouts v. Dale (dealing with rights of private non-profit recreational clubs to control their membership).

Abstract:
This paper is a draft chapter for an edited collection on Law and Public Choice being published by Edward Elgar and edited by Dan Farber and Anne Joseph O'Connell. The chapter provides an overview of public choice literature regarding three aspects of federalism - exit-based normative justifications for federal regimes, voice-based normative justifications for federal regimes, and positive theories for how federal regimes are sustained through the political process. In general, I suggest that the most promising trend in public choice theory is the effort of economists, political scientists, and lawyers to tackle the thorny question of "voice" in federal regimes - that is, how subnational politics differs in federal regimes from the politics of unitary states. Moreover, the case for federalism based on exit critically depends on the argument for federalism based on improvement of "voice." Otherwise, migration from one city or state to another to escape predatory regimes would simply be pointless movement out of a "Leviathan" frying pan into a "Leviathan" fire. Public choice theorists seem to have an inveterate suspicion of claims that subnational government facilitates political participation, perhaps because the entire tradition of public choice is based on the theoretical impossibility that collective action can accurately represent individuals' preferences and values. Yet nothing in the conventional account of how decentralization improves political "voice" is inconsistent with the abstract principles of public choice theory.

Abstract:
Can state governments reward those "senior" residents who immigrate to the state first and remain there the longest? This article explores these questions by examining critically the U.S. Supreme Court's recent decision in Saenz v. Roe. Saenz and earlier precedents asserted that states act illegitimately when they discriminate against newcomers with the purpose of discouraging migration into the state. This article maintains that Saenz inadequately justified this result: neither text, precedent, or sensible policy unambiguously indicate that states should never try to deter migrants from entering the state. Indeed, sensible policy suggests that states legitimately and properly need to deter migrants from migrating to the state just to become eligible for the state's redistributive programs. Otherwise, states would face a strong disincentive to maintain such programs, for fear that neighboring states would "free ride" off of their tax efforts. In the context of the "market participant" exception, the Court has recognized that states need to discriminate against newcomers to prevent such a free rider problem. Saenz oddly ignores these considerations in pronouncing discrimination against newcomers to be unequivocally illegitimate.

This is not to say that the result in Saenz is incorrect. To the contrary, I argue that Saenz reaches the right result, albeit without adequate reasons. The problem with the discrimination against newcomers struck down in Saenz is that it involves discrimination in a means-tested redistributive program -- welfare benefits. This sort of discrimination against the indigent newcomer is especially suspect because, unlike restrictions on divorce decrees or college education, restrictions on welfare and other redistributive programs are likely to be rooted in cultural animosity rather than fiscal self-defense: such restrictions are well-suited to exclude persons on the basis of social class and race in the manner of the old regime of "settlement and removal" that governed this nation's poor prior to the New Deal. These sorts of exclusionary measures are more threatening to our sense of national citizenship than other sorts of temporary disabilities on newcomers -- so threatening that even Congress ought not to have the power to impose them without the most careful explanation of the need for such a burden.

Abstract:
This paper explores whether and to what extent the federal government ought to have the power to liberate the various institutions that compose a "state government" -- the governor, municipalities, counties, school districts, state administrative agencies, etc. -- from the state legislature's control. The federal government frequently attempts to bestow powers on the subdivisions or branches of a state that are inconsistent with state law. For instance, the Federal Power Commission might give a license to a city to build a dam, even though state law bars the city from such a project. Or the Congress might bestow a grant on a county or a state's governor, barring the state legislature from appropriating or otherwise controlling the grantee's use of the grant. In such cases, the question arises whether the federal government can delegate such powers to the subdivisions or branches of the state even against the will of the state legislature. Must the federal government take the state or local institution as it finds them, or can Congress expand the powers of state and local officials even in the teeth of state laws that bar such officials from exercising such powers?

This paper offers a two-part answer to this question. First, the paper defends the traditional view that the federal government may not bestow powers on non-federal governmental officials when those powers are clearly and expressly barred by state law. The doctrinal basis for this principle is obscure: neither Hunter v. City of Pittsburgh nor "state autonomy" doctrine clearly supports such a result. However, this paper argues that the traditional doctrine, which this paper calls "the principle of state supremacy," makes sense as a matter of sound policy, because state lawmakers are more likely to promote certain efficiencies in designing institutions for local governance that the Congress is likely to disregard.

Second, the paper qualifies the "principle of state supremacy" with a presumption of institutional autonomy: under this presumption, when state law is ambiguous, it ought to be construed to maximize the ability of state and local officials to serve as agents of Congress. Such a canon of construction makes sense as a matter of policy, because it encourages useful intra- and intergovernmental competition between various state and local institutions for federal grant revenues and implementing authority. When state legislatures, municipalities, governors, and other non federal institutions compete with each other for federal grants and implementing authority, then Congress can presumptively bypass non-federal officials who fail to implement federal law faithfully and avoid strategic misrepresentations, insuring that state and local officials faithfully adhere to their intergovernmental bargains to carry out schemes of cooperative federalism. Such a presumption is the mirror image of federalism promoting canons of construction: it helps protect nationalism through the states' political process, insuring that, absent a plain statement from the relevant state lawmaker, Congress will continue to have access to the services of state and local officials.

Abstract:
Scholars frequently attack the Court's recent sovereign immunity jurisprudence on the ground that it serves no practical function. In particular, critics can identify no sensible purpose to the doctrine's distinction between private lawsuits seeking "prospective" (injunctive) relief against state governments (which are allowed under Ex Parte Young) and private lawsuits seeking "retrospective" (monetary) relief against state governments (which is barred by the principle of sovereign immunity). This Article takes issue with this objection to sovereign immunity doctrine by suggesting a practical function to the injunction-damages distinction. The doctrine might serve the function of strengthening the position of elected non-federal policy "generalists" (governors and state legislators) against appointed state bureaucrats. State agency specialists often are more loyal to their counterparts in federal agencies, because they share a professional culture, career paths, program priorities, etc. Such a state official might not resist federal agency mandates in the rule-making process, because such mandates comport with his or her own thinking about governmental priorities, and they are a good excuse for a larger budget request from the state legislature. State agency specialists, therefore, can become a surreptitious force for undermining the policy-making discretion of state legislatures and governors.

The Eleventh Amendment doctrine's distinction between damages and injunctions might possibly protect against this threat to federalism. The reason is rooted in the practical reality of budgeting. The money necessary to pay damages rarely comes out of the revenues appropriated for an agency's operations. Instead, states typically maintain some sort of "Judgments Fund" for the payment of damages award. Because damages judgments do not affect an agency's bottom line, damages are a political headache for the state legislature, which must figure out how to find the money to pay the judgment, often out of other programs' budget. By contrast, each agency must itself decide how to comply with injunctions by reallocating their existing resources. Given the practical inertia of state budgeting, the cost of the federal mandate, when enforced with an injunction, will tend to lie where it falls - on the budget of the state agency subject to a state mandate - if the mandate is enforced only by an injunction and not by damages.

By forbidding damages, sovereign immunity doctrine places a "firewall" between each state agency, insuring that federally mandated costs imposed on one state agency - perhaps with that agency's acquiescence - do not spill over on to the budgets of other rival state programs. Thus, the doctrine prevents any state agency from using federal mandates to enlarge its own budget. In this way, the states' immunity from damages might be a partial cure or at least palliative for the ill of state agency's disloyalty to the state's political leadership.

Abstract:
This Article defends the constitutional doctrine of "state autonomy" by drawing an analogy between private corporations and non-federal governments. The national government generally does not confiscate goods or conscript services from private organizations, because these methods of acquiring goods and services tend to be distributionally unjust and economically inefficient. Instead, the government generally relies on voluntary agreements to obtain goods and services. Analogous considerations suggest that the federal government should not be permitted to demand regulatory services from non federal governments. Rather, the federal government should purchase such services through a voluntary intergovernmental agreement.

Examining the empirical reality of intergovernmental relations, I maintain that few transaction costs (e.g., holdouts or other strategic behavior) afflict intergovernmental transactions. Moreover, just as federal conscription of private services inefficiently deters investment in the production of such services, federal "commandeering" of non-federal governments' services also risks deterring state and local politicians' and voters' useful investments of political effort -- voting, running for office, etc. I also argue that such commandeering may be distributionally unjust to the constituencies controlling state and local government in the same way that confiscation of private property imposes distributive injustice on owners of private property.

In the final part of the paper, I argue that the Supreme Court's justifications for its doctrine of state autonomy are misguided and unconvincing. Examining decisions such as Martin v. Hunter's Lessee and Prigg v. Pennsylvania, I argue that the doctrine of state autonomy originally developed out of nationalistic distrust of state governments: Justice Story developed the doctrine to prevent the national government from delegating federal responsibilities to non-federal governments because he deemed non federal governments to be unfit for such duties. I also argue that the "political accountability" argument in New York v. United States and Printz v. United States also reflects such distrust of state officials as federal agents because, taken to its logical conclusion, it would prohibit even voluntary intergovernmental arrangements. I argue instead that the Court should rest its anti-commandeering rule on considerations analogous to the doctrine of regulatory takings.