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.
The Rehnquist Court’s Two Federalisms
The Supreme Court's "Federalist Revival" is now a decade old.1 We have seen neither the revolution that partisans of states rights might have wished nor the deluge that many nationalists feared.2 What we have witnessed is the incremental expansion, across a variety of fronts, of juducially enforced limitations on national authority. While it remains far too early to attempt a definitive assessment, we have enough decisions now to evaluate the Court's project as a developing stream of doctrine rather than as isolated data points. We can fruitfully ask whether the Court's federalism doctrine successfully protects what is important about federalism or, more fundamentally, what "success" would look like. This Article makes both a descriptive and a normative claim about the Court's federalism jurisprudence. The descriptive claim is that the Court's decisions sketch out two distinct visions of what is important about federalism and how it should be enforced. There is, of course, the obvious pattern: Five Justices are generally for imposing constitutional limits on federal authority in a number of different contexts, while four have consistently opposed such limits.3 Less obvious is the particular nature of the constraints imposed. Those constraints embody a rather narrow version of state "sovereignty," defined here as the notion that state governments should be unaccountable for violations of federal norms. The many decisions upholding state sovereign immunity in federal lawsuits are simply the most obvious manifestation of this trend.4 Not all of the Court's efforts have focused on the value of sovereignty, but it is fair to say that it has received considerably greater emphasis than other aspects of federalism. The Court's dissenters, by contrast, have opposed these decisions with unusual vehemence5 and, on several occasions, urged virtually complete judicial abdication of federalism enforcement.6 The broader pattern, however, is more complicated. By expanding the universe of what counts as a "federalism case"-in particular, by taking in cases about federal statutory preemption of state law-one discovers that the supposedly antifederalism Justices have their own theory of state autonomy, instead of simply favoring national power at every turn. The dissenters in cases like Lopez or Seminole Tribe have often-in other cases-emphasized state "autonomy," defined somewhat narrowly here as the ability of states to govern.7 The dissenters, for example, vote to uphold state regulatory measures against claims of federal preemption considerably more frequently than their colleagues.8 These cases likewise reflect a different approach to judicial review of federalism issues, relying on "softer" checks on Congress such as "clear statement" rules of statutory construction. Comparing the two competing visions of federalism on the Rehnquist Court can, in itself, tell us a great deal about the choices involved in making federalism doctrine. My normative claim, however, is that both these visions are incomplete. The majority's view neglects concerns for state regulatory autonomy and overlooks the potential of "process" limits on federal authority. The dissenting vision, on the other hand, improperly discounts the need for some substantive constraint on federal power while missing the support in "process federalism" for more aggressive judicial doctrines. Instead, I argue for a "strong autonomy" model of federalism doctrine that combines many of the features of the other two. The case for this model rests on two sets of arguments. The first has to do with the preference for "autonomy" over "sovereignty." I contend that virtually all the values that federalism is supposed to promote-such as regulatory diversity, political participation, and restraints on tyranny-turn on the capacity of the states to exercise self-government, not on their institutional immunity from federal norms. This capacity for selfgovernment is also critical to states' ability to maintain their own place in the federal balance without relying primarily on judicial protection. …
A feasibility study of adolescent sex education: medical students as peer educators in Edinburgh schools
Objectives To determine the feasibility of medical students being involved in sex education in secondary schools, as lesson leaders in peer group discussions.