The Puzzling Persistence of Dual Federalism
This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived since. The first purpose of this essay is thus taxonomical — that is, to distinguish between dual federalism and the several different models of federalism doctrine that have replaced it. These models — which include “managerial decentralization,” “cooperative (or uncooperative) federalism,” “subsidiarity” or “collective action federalism,” “process federalism,” and “immunity federalism” — each have their pros and cons, but all are better adapted than dual federalism to a post-New Deal world in which the federal government and the states share largely concurrent regulatory authority. My second purpose is to complain about residual notions of dual federalism in the field of foreign relations law. Those tendencies were on display in the Ninth Circuit’s decision in United States v. Arizona, striking down most of Arizona’s immigration law, in part on the ground that immigration, as an aspect of foreign relations, is an exclusively federal sphere. The U.S. Supreme Court’s opinion affirming the Ninth Circuit last term largely avoided such arguments, focusing instead on the specific preemptive effect of federal legislation in the field. But notions of federal exclusivity persist in foreign relations law. I argue that such notions are inconsistent with the general blurring of lines between foreign and domestic affairs that has typified the process of globalization. Finally, I contest Prof. Barber’s assertion that any notion of entrenched federalism limits on national power is conceptually incoherent. Barber asserts that federalists simply can’t make such arguments, because those arguments would have to be addressed to a national audience and presented in a national forum. One is reminded of Mark Twain’s response when asked if he believed in infant baptism: “Of course I do,” he said. “I’ve seen it done.” The more difficult problem in federalism doctrine, which Prof. Barber does not address, is simply the drawing of principled and determinate lines. On that measure, some of the other models discussed earlier are likely to fare better than dual federalism.
Collective Action Federalism: A General Theory of Article I, Section 8
The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own. Subsequent interpretations of Section 8, both outside and inside the courts, often have focused on the presence or absence of collective action problems involving multiple states - but not always. For example, the Supreme Court of the United States, in trying to distinguish the “truly national” from the “truly local” in the context of the Commerce Clause, United States v. Morrison, 529 U.S. 598, 617–18 (2000), has differentiated “economic” activity, which Congress may regulate, from “noneconomic” activity, which Congress may not regulate. A federal constitution ideally gives the central and state governments the power to do what each does best. Economic activity does not generally cause collective action problems among the states, and noneconomic activity is not generally free from collective action problems. Consequently, Congress is not generally better at regulating economic activity, and the states are not generally better at regulating noneconomic activity. The distinction between economic and noneconomic activity seems mostly irrelevant to the problems of federalism. We propose a better foundation for American federalism in Section 8. Our theory distinguishes activities that pose collective action problems from those that do not. This approach flows directly from the relative advantages of the federal government and the states. We show that Section 8 mostly concerns collective action problems created by interstate externalities and national markets. We conclude that Section 8 authorizes Congress to tax, spend, and regulate to solve these collective action problems. Collective action federalism finds that the limits and expanse of congressional power in Section 8 turn on the difference between individual and collective action by the states. The theory uses this distinction to differentiate interstate commerce from intrastate commerce, not the economic/noneconomic distinction. Our distinction best explains why Congress may not ordinarily use its commerce power to regulate such crimes as assault or gun possession in schools. Collective action federalism also identifies a constitutional “hook” for Congress to regulate multi-state problems of collective action that may not involve commerce: Clause 1 of Section 8 authorizes some forms of regulation of noneconomic harms that spill over state boundaries, such as contagious diseases and certain kinds of environmental pollution.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.