Sharing Governance: Family Law in Congress and the States

Abstract

Despite the federalism rhetoric that still marks political debate and judicial opinions, family law in the United States today is a complex mixture of state and federal law. This Article identifies and evaluates three distinct varieties of federalism in family law, each of which presents different pragmatic and constitutional questions. Congress has used its spending power to reconfigure state child support and child welfare laws on a cooperative federalism basis and its powers under the Commerce and Full Faith and Credit Clauses to legislate in areas that pose horizontal federalism problems. National laws may also preempt state family law in areas including civil rights, economic regulation, immigration, and foreign relations. Congress has been primarily responsible for defining the balance of national and state power over families, with the federal courts resisting national family legislation only if it seems likely to shift significant responsibility from the state courts to the federal courts. Given the constitutional and pragmatic federalism concerns, however, this Article concludes that Congress should limit its family legislation to subjects on which there is broad political consensus and strong support from the states.

Keywords: Family policy, Federalism, Legislation, Child support, Child Welfare, Full faith and credit, Federal courts,