Constitutional Resilience

Abstract

Since the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems, often enlisting states as regulatory partners in a system of shared governance that underpins major environmental statutes such as the Clean Water Act and Clean Air Act. But recent Supreme Court decisions challenge this long-established vision of governance. This raises a critical question: how resilient is our current system of constitutional governance?

In this Article, I apply resilience theory to constitutional governance structures and examine how recent Supreme Court decisions either disrupt or support governance doctrines that facilitate our ability to adapt to climate change. I argue that constitutional governance doctrines can and should balance the stability of static rule-of-law resilience with the flexibility required for adaptive governance in a climate-disrupted world.

Keywords: environmental law, separation of powers, federalism, resilience theory, adaptive governance, West Virginia v. EPA, Sackett v. EPA, National Pork Producers Council v. Ross