Federalism and the Right to Decide Who Decides

51 Pages Posted: 12 Oct 2018 Last revised: 15 Oct 2018

Date Written: October 1, 2018


Federal laws sometimes preempt all state policies except those created by legislative enactment. For example, under the Welfare Reform Act of 1996, states cannot give public benefits to undocumented immigrants unless the state legislature enacts a statute that does so. Such laws effectively compel states to delegate their sovereign decision-making power to one entity within a state’s government (like the legislature) rather than others (like the courts).

This article argues that using the preemption power to push decisions into state legislatures is unconstitutional. It is similar to the problem with Congress commandeering state officials by making them implement federal regulatory programs. Both practices involve Congress regulating states directly, as opposed to regulating individuals. The only difference is that instead of requiring specific behavior from state officials, Congress is dictating what H.L.A. Hart called “secondary rules”: meaning, here, rules about who has the power to make rules.

It’s as if a state created an official to decide which branch of state government should handle any given policy question—a Delegator General—and Congress passed a statute dictating the outcome of that official’s decisions. This article considers the arguments that might be made in defense of delegation-forcing preemption, and finds them unconvincing.

Keywords: federalism, states' rights, delegation, preemption, separation of powers, immigration, immigration federalism

Suggested Citation

Ayers, Ava (formerly Andrew), Federalism and the Right to Decide Who Decides (October 1, 2018). Villanova Law Review, Vol. 63, No. 4, 2018, Albany Law School Research Paper No. 15 for 2018-2019, Available at SSRN: https://ssrn.com/abstract=3262284

Ava (formerly Andrew) Ayers (Contact Author)

Albany Law School ( email )

80 New Scotland Avenue
Albany, NY 12208
United States

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