Defeasible Federalism

Abstract

What does it mean for federalism — obviously an issue of constitutional magnitude — to influence constitutional doctrine without being the object of constitutional doctrine? My descriptive claim is that this does occur — concern about the effects of government action or constitutional doctrine on the viability of the federalist system have influenced doctrinal formulation in Commerce Clause cases, dormant Commerce Clause cases, preemption cases, and constitutional rights cases, among other areas. But, to date, the constitutional theory literature has overlooked the basic question of the nature and conceptual status of what courts call, variously, federalism “impacts,” “effects,” or “concerns” in these peculiar contexts. Federalism does not always have the decisive weight conventionally attributed to constitutional norms — it functions as a defeasible reason for decision in some situations. How can a constitutional norm be overridable by non-constitutional — even non-legal — considerations in certain cases? We need new analytic tools to distinguish federalism’s different roles. I develop an account in which federalism’s normative force varies from full and decisive where the stakes for the stability of the constitutional structure are high to overridable where the structural stakes are lower but the public policy stakes are high.

Keywords: federalism, constitutional theory, underenforcement, preemption, anticommandeering, doctrine, functionalist, Supreme Court