From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism

38 Pages Posted: 8 Mar 2014 Last revised: 10 Dec 2014

Date Written: March 6, 2014

Abstract

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. Lacking an autonomous realm of action, states infuse federal law with diversity and competition, aligning themselves with certain federal actors to oppose others. States also participate in national political contests on behalf of Americans both inside and outside their borders. They facilitate competition between the Democratic and Republican parties and offer staging grounds for national networks seeking to advance their agendas through direct democracy. Instead of focusing on state autonomy and distinctive interests, we should accordingly recognize contemporary American federalism as an expression of our multifarious nationalism. This need not lead us to answer Corwin’s question in the negative: precisely because states are disaggregated sites of national governance, not separate sovereigns, they continue to serve as vital cells of “democratic sentiment, impulse, and action.”

Keywords: federalism, separation of powers, checks and balances, administrative law, political parties, partisanship, big waiver, direct democracy, Clean Air Act, S.B. 1070, No Child Left Behind, Affordable Care Act

Suggested Citation

Bulman-Pozen, Jessica, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism (March 6, 2014). Yale Law Journal, Vol. 123, 2014; Columbia Public Law Research Paper No. 14-384 . Available at SSRN: https://ssrn.com/abstract=2405675

Jessica Bulman-Pozen (Contact Author)

Columbia University - Law School ( email )

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

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