The Union as a Safeguard Against Faction: Congressional Gridlock as State Empowerment

22 Pages Posted: 15 Feb 2014

Date Written: June 1, 2013


This short essay, written for Notre Dame Law Review’s conference on congressional gridlock, argues that gridlock is an expected and integral component of the legislative process. The bicameralism and presentment requirements of Article I of the U.S. Constitution make legislation difficult to pass in order to protect the public from the whims of shifting congressional majorities. Nevertheless, gridlock that is based primarily on partisan considerations rather than policy differences can be unconstitutional, as defined by U.S. Supreme Court caselaw, if it stymies legislation that is in the public interest. The remedy for “unconstitutional” gridlock is not judicial action, however; the remedy lies in devolving policymaking authority down to the states, allowing them to craft local solutions to national problems and address the problem as it manifests within their borders. While not ideal, this temporary fix has some federalism benefits as it encourages experimentalism in law and policy as well as citizen participation in democratic processes at the state level. When states take the initiative and craft policy to address national problems, as illustrated by recent controversies over immigration reform, their assertiveness can help break the gridlock by forcing Congress’s hand.

Keywords: federalism, Congress, states, gridlock, immigration reform

Suggested Citation

Tolson, Franita, The Union as a Safeguard Against Faction: Congressional Gridlock as State Empowerment (June 1, 2013). Notre Dame Law Review, Vol. 88, p. 2267, 2013, FSU College of Law, Public Law Research Paper No. 686, Available at SSRN:

Franita Tolson (Contact Author)

USC Gould School of Law ( email )

699 Exposition Blvd
Los Angeles, CA California 90089
United States
2137407683 (Phone)

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