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

Abstract:
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.

You know...

I'm officially committed to the view that the Bloc Quebecois and Parti Quebecois have jointly been an inadvertently useful force for Canadian federalism-- it has helped to keep the Canadian federation decentralized enough to keep Quebec on the inside, and decentralization to Quebec has been one of the engines for decentralization and stabilization throughout the system.

That doesn't make Gilles Duceppe any less obnoxious.

Duceppe said he is not prepared to sign the Canadian constitution, even if Prime Minister Stephen Harper grants his demand for the recognition of the Québécois as a nation to be enshrined in the constitution.

"There are a lot of other things that have to be part of changes to the constitution, it isn't limited to that," Duceppe replied. "At the end of the line, I think we can never obtain what we want within Canada. That's why we need sovereignty."

However, if there were a pan-Canadian referendum on enshrining the recognition in the constitution, Duceppe said he would be prepared to campaign in favour of it.

Duceppe dismissed suggestions he has gone from being a sovereignist to trying to improve the Canadian constitution.

"Every gain for Quebec is a gain for the future of Quebec, another step toward sovereignty."

If Harper is serious about recognizing the Québécois as a nation, he will put it in the constitution and give it real legal weight, he said.

Recognizing the Québécois as a nation in the constitution could also be instrumental in Quebec getting international recognition should Quebecers one day vote for sovereignty, he said.

"The first country to have recognized us as a nation in its constitution (will be) Canada. We have inaliable rights as a nation to determine our own future and it's not up to another country to impose its rules on us. We will use that."

Heads I win, tails you lose. I can understand why every time he opens his mouth Anglo-Canadians become less sympathetic to Quebec. The fact that the tension ends up being constructive doesn't maqke it any more pleasant. (Of course, when I read Anglo-Canadians in the rest of Canada commenting about Quebec, I can also understand the resentments that Duceppe and is ilk thrive on.)

New NEH grant opportunity of likely interest to political theorists/ philosophers

Enduring Questions: Pilot Course Grants

The purpose of the Enduring Questions grant program is to encourage faculty and students at the undergraduate level to grapple with the most fundamental concerns of the humanities, and to join together in deep, sustained programs of reading in order to encounter influential thinkers over the centuries and into the present day.

Enduring questions are, to an overarching degree, pre-disciplinary. They are questions to which no discipline or field or profession can lay an exclusive claim. Enduring questions can be tackled by reflective individuals regardless of their chosen vocations, areas of expertise, or personal backgrounds. They are questions that have more than one plausible or interesting answer. They have long held interest for young people, and they allow for a special, intense dialogue across generations. The Enduring Questions grant program will help promote such dialogue in today’s undergraduate environment.

What are these enduring questions? The following list is neither prescriptive nor exhaustive but serves to illustrate.

* What is the good life?
* What is justice? Mercy?
* What is freedom? Happiness?
* What is friendship?
* What is dignity?
* Is there a human nature, and, if so, what is it?
* What are the limits of scientific understanding?
* What is the relationship between humans and the natural world?
* Is there such a thing as right and wrong? Good and evil?
* What is good government?
* What are the origins of the modern world?
* What is liberal education?

The Enduring Questions grant program will support new humanities courses at the undergraduate level: their design and preparation, teaching, and assessment, as well as ancillary activities that enhance faculty-student intellectual community. Courses may be taught by faculty from any department or discipline in the humanities or by faculty outside the humanities (e.g., astronomy, biology, economics, law, mathematics, medicine, psychology), provided humanities sources are central to the course.

NEH Enduring Questions courses:

* must give evidence of “pre-disciplinary” character, encouraging reflection on human experience and avoiding extensive specialization;
* must focus on an explicitly stated question or questions, pursued in a disciplined and deliberate manner;
* must draw on significant readings from prior to the twentieth century and may draw on later works, with a preference for reading books in their entirety or near entirety;
* may draw on artworks (e.g., music, plays, sculpture);
* must reflect intellectual pluralism, anticipating more than one plausible or interesting answer to the question(s) at hand;
* must be open to all students regardless of major or concentration;
* may not be offered for graduate credit; and
* require a letter of institutional support from the president, provost, dean, program chair, or department chair, attesting to the course being new and committing to offering the course at least twice.

See more, including application eligibility and procedures, at the link.

Nota bene

From The Chronicle:

The vice chancellor of the University of Cambridge courted controversy in a speech today by criticizing the British government for “meddling” and for pressuring top institutions like hers to admit more graduates of public high schools.

“As institutions charged with education, research, and training, our purpose is not to be construed as that of handmaidens of industry, implementers of the skills agenda, or indeed engines for promoting social justice,” Alison Richard told her fellow vice chancellors, who are meeting this week in Cambridge for the annual conference of their representative organization, Universities UK.

Ms. Richard, a former Yale provost, went on to tell her colleagues that “we need the independence and autonomy to chart our individual institutional courses, and to experiment.”

Elsewhere

At MR: Alex Tabarrok, "Why Libertarians Should Vote For Obama.

Claims that have to make Americans living in Canada giggle:

Bloc Quebecois Leader Gilles Duceppe, battling his party's sliding popularity in Quebec against both the Conservatives and the Liberals, sought to rally Quebecers around one idea. He said they must vote Bloc to deprive Harper of the majority he so dearly wants to prevent him imposing his "right-wing, American-style ideology" on Quebecers.