Regulatory Federalism, Shaken Not Stirred

29 Pages Posted: 5 Apr 2013

See all articles by Keith Werhan

Keith Werhan

Tulane University - Law School

Date Written: 2013


This article analyses two high-profile, politically-charged and nearly simultaneous decisions of the most recent Supreme Court Term, each of which addressed claims that called into question long-established principles of regulatory federalism jurisprudence. Arizona v. United States arose from a state law that aggressively challenged federal immigration policy regarding aliens who entered the country illegally, a subject for which constitutional jurisprudence has long prescribed federal supremacy. A slender majority of the Court in Arizona largely invalidated the state law on preemption grounds. The article suggests that Arizona signals continuation of the traditional dominance of Congress over immigration and the status of aliens, and by extension, over domestic regulation that touches on the international relations of the nation.

Just three days after announcing the Arizona decision, the Court decided National Federation of Independent Business v. Sebelius, which involved a broad-based challenge by over half of the states to an ambitious congressional effort to provide for nearly universal healthcare. Shifting majorities of the Court mostly upheld the congressional program, even as they restricted each of the principal powers on which Congress traditionally has relied to control or shape individual conduct in the purely domestic realm – the commerce, necessary and proper, taxing, and spending powers. The article argues that the Justices’ opinions in National Federation of Independent Business illuminate a Court that is in deep and nearly even conflict over whether to substantially revise the post-1937 constitutional jurisprudence governing congressional regulatory power over the internal concerns of the nation and its people.

Thus, while the Court in Arizona resettled regulatory federalism jurisprudence favoring federal supremacy in domestic matters with a foreign policy dimension, the cross-cutting opinions and shifting alliances of National Federation of Independent Business unsettled a wide swath of long-established doctrine regarding the regulatory power of Congress in purely domestic matters.

Keywords: constitutional law, federalism, regulatory federalism, immigration and naturalization, commerce clause

Suggested Citation

Werhan, Keith M., Regulatory Federalism, Shaken Not Stirred (2013). Journal of Law and Politics, Vol. 21, No. 1, 2013, Tulane Public Law Research Paper No. 13-6, Available at SSRN:

Keith M. Werhan (Contact Author)

Tulane University - Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States
504-865-5933 (Phone)

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