The Once and Future Challenges of American Federalism: The Tug of War Within
This essay is drawn from a lecture for the “Ways of Federalism” conference (University of the Basque Country, October 19, 2011) and a forthcoming book, Federalism and the Tug of War Within (Oxford, 2012), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system.
Federalism at the 'Cathedral': Property Rules, Liability Rules, and Inalienability Rules in Tenth Amendment Infrastructure
As the climate crisis, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But heady plans for energy reform may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule in 1992. The same dry technicality has also threatened the effective management of storm water pollution, contributed to the failed response to Hurricane Katrina, and poses ongoing regulatory obstacles in such critical interjurisdictional contexts as national security and counter-terrorism efforts. Such is the enormous power hidden in the infrastructure of legal rules, parts of which we know better as property, liability, and inalienability remedy rules. Federalism at the Cathedral explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Court used to protect the anti-commandeering entitlement. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress lacked the authority to bind a state's participation in a regulatory scheme even if state officials had effectively waived Tenth Amendment-based objections during consensual negotiations with the federal government. In so doing, the Court articulated a reasonable entitlement to federal noninterference protected by an unreasonable inalienability rule. It is an inalienability rule, because any number of collective action problems would prevent the negotiated transfer of the entitlement except through elected representation. It is unreasonable, because the intergovernmental partnerships thus thwarted would help resolve pressing interjurisdictional problems without offending the constitution. Indeed, underlying values of federalism that give meaning to the Tenth Amendment would be better served by allowing a state to decide for itself whether to hold or trade its entitlement. Focusing on the facts and legacy of the New York decision, the Article concludes that although its inalienability rule is defensible in exclusively state or federal jurisdictional contexts, it is dubious in contexts that require regulatory attention at both the local and national level. A property rule that would enable states to bargain with their anti-commandeering entitlement would not offend the touchstone of Tenth Amendment jurisprudence, which has always been the prevention of federal "coercion" of the states. A pro-bargaining property rule would be more consistent with the rest of the Court's federalism jurisprudence, more faithful to the full panoply of values that under gird American federalism, and better for state and federal governance in difficult interjurisdictional contexts.
Climate Change, Federalism, and the Constitution
Climate change is a global problem. There can be little doubt about its seriousness and the challenges it poses for our society. The Intergovernmental Panel on Climate Change’s (IPCC) 2007 report explains the scientific consensus that concentrations of greenhouse gases (GHG) “have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years.” Moreover, climate change is already upon us, and its effects are being felt not only at the global level but in many localities. “Examples of observed changes caused by human releases of GHG include shrinkage of glaciers, thawing of permafrost, later freezing and earlier break-up of ice on rivers and lakes,” as well as biological changes such as “shifts of plants and animal ranges, declines of some plant and animal populations, and earlier flowering of trees, emerging of insects, and egglaying in birds.” Further impacts await us.