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.
Distinguishing the 'Truly National' from the 'Truly Local': Customary Allocation, Commercial Activity, and Collective Action
This Essay makes two claims about different methods of defining the expanse and limits of the Commerce Clause. My first claim is that approaches that privilege traditional subjects of state regulation are unworkable and undesirable. The approaches are unworkable in light of the frequency with which the states and the federal government regulate the same subject matter in our modern world of largely overlapping federal and state legislative jurisdiction. The approaches are undesirable because the question of customary allocation is unrelated to the principal reason why Congress possesses the power to regulate interstate commerce: solving collective action problems involving multiple states. These problems are evident in the way that some federal judges invoked regulatory custom in litigation over the constitutionality of the minimum coverage provision in the Patient Protection and Affordable Care Act. The areas of “health insurance” and “health care” are not of exclusive state concern, and it is impossible to lose — or to win — a competition requiring skillful lawyers or judges to describe them as more state than federal, or more federal than state. Nor is it most important what the answer is. More promising are the approaches that view congressional authority as turning on either commercial activity or collective action problems facing the states. My second claim is that these two approaches have advantages and disadvantages, and that the choice between them exemplifies the more general tension between applying rules and applying their background justifications. I have previously defended a collective-action approach to Article I, Section 8. My primary purpose in this Essay is to clarify the jurisprudential stakes in adopting one method or the other, and to identify the problems that advocates of each approach must address.
The Area of Freedom, Security and Justice ten years on: Successes and future challenges under the Stockholm Programme. CEPS Paperbacks. June 2010
This book celebrates the tenth anniversary of the Area of Freedom, Security and Justice (AFSJ) by bringing together the views of key practitioners and policy-makers who have played an outstanding role in thinking about and shaping EU policies on freedom, security and justice. 
 
Ten years ago, the member states transferred competences to the EU for law and policy-making in the fields of immigration, asylum and border controls, and began the transfer process for criminal justice and policing. This decade of European cooperation on AFSJ policies has experienced very dynamic convergence, the enactment of a large body of European law and the setting-up of numerous EU agencies working in these domains. Such dynamism in policy-making has not been without challenges and vulnerabilities, however. As this collective volume shows, the main dilemmas that lie ahead relate to an effective (while more plural) institutional framework under the Treaty of Lisbon, stronger judicial scrutiny through a greater role for national courts and the Court of Justice in Luxembourg, better mechanisms for evaluating and monitoring the implementation of EU AFSJ law and a more solid fundamental rights strategy. The contributions in this volume address the progress achieved so far in these policy areas, identify the challenges for future European cooperation in the AFSJ and put forward possible paths for making more progress in the next generation of the EU’s AFSJ.