Saturday, September 13, 2008

Uncooperative federalism

Onto the reading list, via Larry Solum: Uncooperative federalism.
Uncooperative Federalism

Jessica Bulman-Pozen
affiliation not provided to SSRN

Heather Gerken
Yale University - Law School

Yale Law Journal, Vol. 118, 2009

This essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first depicts states as rivals and challengers to the federal government, a role they play by virtue of being autonomous policymakers outside the federal system. A second vision is offered by scholars of cooperative federalism, who argue that in most areas states serve not as autonomous outsiders, but supportive insiders, servants and allies carrying out federal policy. The puzzle is that we rarely try to connect these competing visions and imagine how the state's status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger. Legal scholars have thus neglected the possibilities associated with what we call "uncooperative federalism." We see examples of uncooperative federalism scattered throughout "our federalism," instances where states use regulatory power conferred by the federal government to resist federal policy.

Most legal scholars are likely to be aware of this type of resistance, or at least unsurprised by its existence. That makes the scholarly neglect of this topic all the more surprising. While uncooperative federalism occurs often in our federal system, we don't have a vocabulary for describing it, let alone a fully developed account of why it happens, what it means, and what implications it holds for the doctrinal debates in which federalism scholars routinely engage. This essay provides an initial account of this undertheorized aspect of our federalism. It compares the distinct powers that the state wields as sovereign and servant. It sketches a normative argument for why uncooperative federalism might be useful in a well-functioning federal system. And it explores what a strong commitment to uncooperative federalism would mean for the doctrine on commandeering and preemption, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in harder forms of dissent.