Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area
Lewis & Clark Law School
Maryland Law Review, Vol. 66, No. 3, 2007
This article explores tensions between the underlying values of federalism that come into conflict when either the federal or State governments regulate within the interjurisdictional gray area that simultaneously implicates important local and national concerns. The piece takes the example of the failed response to Hurricane Katrina to illustrate the conflict between federalism values that arise within this realm, and how the New Federalism's strict separationist model of dual sovereignty inhibits effective governance in interjurisdictional contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity principle (that regulatory decision-making should take place at the most local level possible). The historic progression between models of federalism informing Supreme Court interpretation over the 20th century reflects a pendulum-like attempt to get the proper balance between these underlying values, each model perhaps overcompensating for the excesses of its predecessor. Although the Court's federalism jurisprudence during the New Deal era prioritized the problem-solving value over the check-and-balance anti-tyranny value, the New Federalism decisions exalts the check-and-balance value at the expense of the problem-solving (and all other) federalism values, protecting the bright line it posits between mutually exclusive spheres of proper state and federal regulatory authority.
Demanding both local and national regulatory attention, interjurisdictional problems do blur that bright line boundary, pitting the values of problem-solving and checks-and-balances against one another. But it is arguably the tension between federalism's check-and-balance and problem-solving values that has made our system such an enduring form of government - enabling it to adjust for changing demographics, technologies, and expectations without losing its essential character. However, the New Federalism's focus on preserving checks and balances above all else renders it unable to effectively mediate this important competition, failing other federalism values and obstructing even desirable regulatory activity in the interjurisdictional gray area (such as federal initiative that might have been taken in the wake of Katrina). Comparatively pragmatic Cooperative Federalism affords some balance, but is undertheorized, and critiqued as insufficiently protective of anti-tyranny values.
To remedy the theoretical problems left unresolved by Cooperative Federalism and the additional ones caused by New Federalism, this piece argues that the Court should adopt a model of Balanced Federalism that better mediates between competing federalism values and provides greater guidance for regulatory decision-makers and adjudicators. Where the New Federalism asks the Tenth Amendment to police the boundary between mutually exclusive spheres of state and federal regulatory authority from crossover by either side, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity within the interjurisdictional gray area for impermissible compromise of the fundamental federalism values. The article concludes by introducing the outlines of a jurisprudential standard for guiding interpretation of proper jurisdictional boundaries under the Tenth Amendment. Such a framework would foster a more thoughtful balance between the various federalism values that, though in tension with one another, have made our system of government so effective and enduring.
Note: This article became the basis for a later book, FEDERALISM AND THE TUG OF WAR WITHIN (http://ssrn.com/abstract=1991612), which incorporates these ideas into a more comprehensive theoretical approach.
Number of Pages in PDF File: 165
Keywords: federalism, New Federalism, Tenth Amendment, interjurisdictional, problem solving, checks and balances, values, balancing test
JEL Classification: H1, H5, H7Accepted Paper Series
Date posted: September 21, 2006 ; Last revised: December 3, 2014
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