Uncooperative Federalism

55 Pages Posted: 12 Sep 2008 Last revised: 6 Dec 2010

Jessica Bulman-Pozen

Columbia University - Law School

Heather Gerken

Yale University - Law School

Date Written: September 10, 2008

Abstract

This Essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, roles they play by virtue of being autonomous policymakers outside the federal system. A second vision is offered by scholars of cooperative federalism, who argue that in most areas states serve not as autonomous outsiders, but supportive insiders—servants and allies carrying out federal policy. Legal scholarship has not connected these competing visions to consider how the state’s status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger. The literature has not developed a vocabulary for describing how states use regulatory power conferred by the government to resist federal policy, let alone a full account of the implications of this practice. It has thus neglected the possibilities associated with what we call “uncooperative federalism.” In this Essay, we provide an initial descriptive and normative account of this undertheorized aspect of our federalism. We also explore what a strong commitment to uncooperative federalism would mean for the doctrines on commandeering and preemption, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in stronger forms of dissent.

Keywords: federalism, autonomy, sovereignty, dissent, cooperative federalism, commandeering, preemption, Printz

Suggested Citation

Bulman-Pozen, Jessica and Gerken, Heather, Uncooperative Federalism (September 10, 2008). Yale Law Journal, Vol. 118, 2009; Yale Law School, Public Law Working Paper No. 166. Available at SSRN: https://ssrn.com/abstract=1266319

Jessica Bulman-Pozen

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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