The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Federalism" Doesn'T

In Michigan Law Review, Vol. 96, No. 4, 1997.

Posted: 20 Nov 1997


This Article defends the constitutional doctrine of "state autonomy" by drawing an analogy between private corporations and non-federal governments. The national government generally does not confiscate goods or conscript services from private organizations, because these methods of acquiring goods and services tend to be distributionally unjust and economically inefficient. Instead, the government generally relies on voluntary agreements to obtain goods and services. Analogous considerations suggest that the federal government should not be permitted to demand regulatory services from non federal governments. Rather, the federal government should purchase such services through a voluntary intergovernmental agreement.

Examining the empirical reality of intergovernmental relations, I maintain that few transaction costs (e.g., holdouts or other strategic behavior) afflict intergovernmental transactions. Moreover, just as federal conscription of private services inefficiently deters investment in the production of such services, federal "commandeering" of non-federal governments' services also risks deterring state and local politicians' and voters' useful investments of political effort -- voting, running for office, etc. I also argue that such commandeering may be distributionally unjust to the constituencies controlling state and local government in the same way that confiscation of private property imposes distributive injustice on owners of private property.

In the final part of the paper, I argue that the Supreme Court's justifications for its doctrine of state autonomy are misguided and unconvincing. Examining decisions such as Martin v. Hunter's Lessee and Prigg v. Pennsylvania, I argue that the doctrine of state autonomy originally developed out of nationalistic distrust of state governments: Justice Story developed the doctrine to prevent the national government from delegating federal responsibilities to non-federal governments because he deemed non federal governments to be unfit for such duties. I also argue that the "political accountability" argument in New York v. United States and Printz v. United States also reflects such distrust of state officials as federal agents because, taken to its logical conclusion, it would prohibit even voluntary intergovernmental arrangements. I argue instead that the Court should rest its anti-commandeering rule on considerations analogous to the doctrine of regulatory takings.

JEL Classification: H77

Suggested Citation

Hills, Roderick Maltman, The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Federalism" Doesn'T . In Michigan Law Review, Vol. 96, No. 4, 1997., Available at SSRN:

Roderick Maltman Hills (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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