indicated in the text here, these excerpts omit significant portions of the .... Examples of such de facto interjurisdictional regulatory problems include the regulation of air .... gridlock, posing obstacles to novel approaches to interjurisdictional regulatory ... In this ironic respect, the New Federalism simply does what New Deal.
This chapter contribution is excerpted from: FEDERALISM AND THE TUG OF WAR WITHIN: SEEKING CHECKS AND BALANCE IN THE INTERJURISDICTIONAL GRAY AREA 66 MD. L. REV. 503 (2007). These excerpts are used with permission of the Maryland Law Review. While not indicated in the text here, these excerpts omit significant portions of the original article at the end of Parts I and II, after the third paragraph of Part II, and at the end of Part III, where this chapter concludes. Section numbers and note numbers have been changed from the original article to reflect their current arrangement in this chapter. See the original article for the complete discussion. Erin Ryan retains the right to use any and all parts of this work in the future without further permission from Ashgate Publishing. ∗ Associate Professor, Marshall-Wythe School of Law, College of William & Mary; J.D., 2001, Harvard Law School; M.A., 1994, Wesleyan University; A.B., 1991, Harvard-Radcliffe College. I am deeply indebted to Bill Van Alstyne, Richard Lazarus, Erwin Chemerinsky, Vicki Jackson, Neal Devins, Michael Stein, Tony Arnold, David Barron, John Vile, and Laura Heymann for their insightful comments, and as well to Ned Ryan, Eric Kades, Dave Douglas, Michele Gillman, Nancy Combs, Rich Hynes, Eric Chason, and Linda Malone for their guidance during my early phases of research. Finally, this project would not have been possible without the expert research assistance of Jessica Deering, Syed Masood, Janet McCrae, Katy Mikols, Catherine Rylyk, Tara St. Angelo, Matthew Whipple, and especially Tal Kedem, and the hard work of the Maryland Law Review editors who helped prepare it for publication.
what is truly national and what is truly local.”2 And yet, even conceding the value of the federalism principles thereby implied, we have yet to seriously reckon with the question that hangs after the rhetorical satiety dissipates: What about everything in between?
‘appropriate legislation’ under Section Five of the Fourteenth Amendment”), City of Boerne v. Flores, 521 U.S. 507, 536 (1997) (finding that the Religious Freedom Restoration Act of 1993 (RFRA) exceeded Congress’ authority under Section Five of the Fourteenth Amendment); (3) the extent of Congress’ ability to command state executive branch and legislative activity, see, e.g., Printz v. United States, 521 U.S. 898, 935 (1997) (holding that Congress may not compel state and local law enforcement to implement a federal regulatory program); New York v. United States, 505 U.S. 144, 161 (1992) (holding that the Tenth Amendment forbids Congress from “commandeering” state legislative action under a federal regulatory program); but see Reno v. Condon, 528 U.S. 141, 151 (2000) (finding that a federal law regulating state action did not commandeer state legislative and administrative process); and (4) the extent of state sovereign immunity, see, e.g., Alden v. Maine, 527 U.S. 706, 712 (1999) (limiting Congress’ power to authorize suits against state governments in state courts); Seminole Tribe v. Florida, 517 U.S. 44, 47 (1996) (limiting Congress’ power to authorize suits against state governments in federal courts). For further discussion, see Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 MD. L. REV. 503, pt. III.A., at 539-54 (2007) [hereinafter Tug of War]. 2.Morrison, 529 U.S. at 617–18 (emphasis added).
that characterized the failed response to Hurricane Katrina. This Article argues that American federalism can ably weather this storm, but it will require that we (1) recognize the interjurisdictional zone that so complicates the project; (2) better understand the tensions between underlying federalism values there exacerbated; and (3) articulate an administrable means of mediating between them so as to best realize the ultimate objectives of our constitutional design. This the New Federalism fails to do, as have preceding interpretive movements that espoused similar ideals until they too were overcome by competing federalism concerns for which their theories could not account. In this most recent round, the Court’s reasoning has proceeded from a model of statefederal relations based on a severe construction of dual sovereignty, the constitutional principle by which regulatory authority is allocated between the independently-functioning federal and state governments.
separationist model, state and federal governments are idealized as operating in mutually exclusive spheres of jurisdiction, without overlap. Regulatory matters are styled as properly local or national concerns, state and federal authority is segregated accordingly, and the Tenth Amendment polices the supposed brightline boundary between them.
3.MORTON GRODZINS, THE AMERICAN SYSTEM 8, 60–153 (Daniel J. Elazar ed., 1966).
decisionmaking, the New Federalism’s ideals seek to impact decisionmaking at both levels, and have been embraced by decisionmakers at both levels. See Tug of War, supra note 1, at 539-54. 5.See Tug of War, supra note 1, at 522-39 (discussing the role of federalism considerations in the federal response to Hurricane Katrina). 6.See id,. at 522-39. Interestingly, the public castigation that the federal government received for its failed Katrina response suggests that the New Federalism has not changed the way that large sectors of the public think about the respective roles of state and federal government. 7.The strict-separation ideal extrapolated from the New Federalism decisions exceeds their doctrinal impact at present, and we continue to operate from within a predominantly cooperative federalism system. See id., at 637-42. Nevertheless, it has already infiltrated the regulatory mindset of policymakers. See id., at 522-39. As such, the strict-separationist trajectory of New Federalism warrants scrutiny now, before its culmination further complicates our ongoing navigation of good governance.
8.See, e.g., id, at 577-80. 9.In recognition that not every public quandary ranks among the “regulatory problems” with which we are here concerned, I note that for the purposes of this piece, “regulatory problems” are those associated with the classic targets anticipated by administrative law—such as market failures, negative externalities, and other collective action problems reasonably susceptible to efficient resolution by government activity. See id., at 567-96. 10.An example of this type of de jure interjurisdictional regulatory problem is the regulation of stormwater pollution. See id.., at 572-80. 11.Examples of such de facto interjurisdictional regulatory problems include the regulation of air pollution and domestic efforts to combat terrorist attacks from abroad. See id. at 580-84.
12.Establishing precise boundaries around the category of interjurisdictional regulatory problems invites disagreement, ranging from dispute over whether a given problem truly implicates both local and national concern to dispute over whether the given problem is truly amenable to a regulatory solution. I leave such legitimate arguments aside for the purpose of this piece, which introduces an interjurisdictional conceptual framework to the federalism discourse through a sample of problems that meet the criteria in a relatively uncontroversial manner.
environmental and land use problems, natural disaster management issues, public health crises, and counterterrorism and national security matters. See id., at 567-96. 13.See id. , at 596-629.
14.See id. , at 620-28. 15.See id. ,at 629-43.
the Supreme Court adopted a model of federalism that exalted the problemsolving value at the expense of the check-and-balance value to approve pragmatic New Deal legislative programs that expanded federal jurisdiction into traditionally local arenas. Cooperative federalism, the predominant model of federalism since World War II, recovers some of the balance through a partnership-based approach to regulation in areas of interjurisdictional overlap, allowing state and federal governments to take responsibility for interlocking components of a collaborative regulatory program.
cooperative federalism is, at best, undertheorized (and at worst, more coercive than collaborative), the New Federalism reestablishes the supremacy of the checkand-balance value over all others in an effort to bolster the line between state and federal authority against pressures (some perhaps political, others genuinely interjurisdictional) that would blur the boundary. Demanding attention from both a national and local actor, interjurisdictional problems do blur that boundary, pitting concerns about tyranny and needs for pragmatism against one another.
17.For example, the innovative state-federal partnership created by the Clean Water Act’s Phase II Stormwater Rule, though negotiated with the participation of the states over a ten-year period, was challenged fiercely (though unsuccessfully) on Tenth Amendment grounds. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 843–45 (9th Cir. 2003); National Pollutant Discharge Elimination System—Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges, 64 Fed. Reg. 68,722, 68,724, 68,743 (Dec. 8, 1999); see also Tug of War, supra note 1,, at 577-80. 18.For example, federalism-related concerns may have frustrated a more efficient regulatory response during the aftermath of Hurricane Katrina. See Tug of War, supra note 1, at 522-39.
Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court’s Quest for Original Meaning, 52 UCLA L. REV. 217, 287 (2004) (reviewing the “vast body of primary historical materials . . . that support a spectrum of constitutional meaning” and the accordingly futile project of constraining judicial interpretation with originalist principles); see also Stephen R. Munzer & James W. Nickel, Does the Constitution Mean What It Always Meant?, 77 COLUM. L. REV. 1029, 1032–33 (1977); Robert Post, Theories of Constitutional Interpretation, in REPRESENTATIONS 13 (1990). Although none dispute the proper recourse to amendment for correcting clearly defective textual provisions, they argue that some degree of interpretive lawmaking is a necessary part of the judicial function in applying vague constitutional commands to new controversies. See, e.g., Laurence H. Tribe, Comment, in SCALIA, A MATTER OF INTERPRETATION, supra, at 68–72 (discussing the problem of choosing the correct “level of abstraction” at which constitutional clauses should be construed).
deliberate interpretive space in the model of dual sovereignty implied by the Constitution, most directly in the text of the Tenth Amendment. 20.E.g., RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL LAW (2004) (endorsing regulatory approach to many environmental problems). 21.E.g., MURRAY N. ROTHBARD, FOR A NEW LIBERTY: THE LIBERTARIAN MANIFESTO (rev. ed. 1978).
22.For example, Edward Rubin has observed that [f]ederalism is indeed worth discussing; it is a basic, truly fundamental question of political organization. Fortunately, the United States has not needed to confront this question, as a matter of practical politics, for nearly a century. That is what makes it so much fun to talk about. Like a healthy person talking about medical care, a congenitally thin person talking about dieting, or a rich person talking about money problems, we can lavish exuberant attention on the subject without any sense of urgency or danger. . . . [T]here is also an intrinsic pleasure in talking about how much one has of something that one does not need, and that other people desperately require.
Edward L. Rubin, The Fundamentality and Irrelevance of Federalism, 13 GA. ST. U. L. REV. 1009, 1010 (1997). 23.See Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 HARV. L. REV. 2180, 2213–23 (1998) (arguing in favor of American federalism’s continued vitality despite cogent criticism of the New Federalism approach in the Tenth Amendment context); cf. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 951 (1994) (conceding, despite skepticism, that the states serve beneficial roles as mechanisms of decentralization and that American federalism might retain value for reasons of historical and cultural identity).
Comment [e1]: Just a note that the formatting appears to change here, from double spacing to 1-1/2 line spacing. I’m sure this will get fixed in the next editing phase, but thought I’d point it out.
interjurisdictional gray area, I proceed from the assumption that good government should address those market failures, negative externalities, and other collective action problems that individuals are ill-equipped to resolve on their own and that so threaten public welfare as to warrant a regulatory response24 despite the libertarian-highlighted risks that inherently attend the exercise of governmental authority.25 As we face interjurisdictional problems that meet these criteria, we deserve a model of federalism that anticipates the competition between federalism values that will arise in the interjurisdictional gray area so invisible to New Federalism.
Basil S. Markesinis eds., 2006) (“Every federalism responds to a unique history, and thus every federalism is different from every other.”). For example, the European Union, Canada, India, and Switzerland are all federalism-based polities whose federations exhibit unique characteristics. The American dual sovereignty principle is well illustrated in Collector v. Day, in which the Supreme Court stated that [t]he general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendment, “reserved,” are as independent of the general government as that government within its sphere is independent of the States. 78 U.S. (11 Wall.) 113, 124 (1870). 27.U.S. CONST. art. I, § 8. 28.U.S. CONST. amend. X. 29.See supra note 19.
30.E.g., U.S. CONST. art. IV, § 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government . . . .”). 31.U.S. CONST. amend. X.
Supremacy Clause,32 suggests that at least some of this authority may be wielded exclusively at the federal level, preempting contrary state law. However, neither the Tenth Amendment nor the Supremacy Clause nor any other provision in the Constitution decisively resolves whether there may also be regulatory spaces in which both the states and the federal government may operate (if they have not been withdrawn from either’s commission by express constitutional limitation or purposeful preemption). Drawing the conclusion that such overlapping regulatory space exists requires an interpretive leap, but so does the extrapolation of wholly mutually exclusive spheres of authority.33 Either conclusion demands application of some exogenous theory about what American federalism means, or what, in essence, federalism is for. That we have relied on one theory or another to resolve the matter (in ways that may eventually come to seem obvious if only by virtue of their repetition) does not negate the role of federalism theory in getting us to that point.
32.U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). The Supremacy Clause tells us that federal law is “supreme,” but from there to field preemption nevertheless requires an interpretive leap. 33.See Tug of War, supra note 1, text accompanying notes 153-59; see also Jackson, supra note 23, at 2191 (noting that the Constitution’s assumption that states would continue to exist “does not tell us whether states can be required to help carry out federal law”).
34.See, e.g., New York, 505 U.S. at 181 (“[T]he Constitution divides authority between federal and state governments for the protection of individuals. . . .
liberties that derive from the diffusion of sovereign power.” (internal quotation marks omitted)). 35.See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 458 (1991) (noting that federalism “increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry”). 36.See Tug of War, supra note 1, at 596-629. 37.See id.,, at 596-643.
or not, among different models of federalism that then inform our lawmaking and adjudication.38 In the United States, political discourse has tended more and more to treat the ideals of the diffusion of sovereign power and the pragmatic concerns of problemsolving as a federalism thesis and antithesis—principles in opposition to one another, rather than complementary elements of the overall federalism project. Regardless, a federalism model that subordinates pragmatic concerns to the maintenance of formalist boundaries between the reservoirs of state and federal power is clearly a legitimate political choice.
38.One might fairly ask, “[w]ho is the ‘we’ of whom you speak?” James Boyd White, Law as Language: Reading Law and Reading Literature, 60 TEX. L. REV. 415, 442 (1982) (internal quotation marks omitted); see id. at 442–43 (“In place of the constituted ‘we,’ that it is the achievement of our past to have given us, we are offered an unconstituted ‘we,’ or a ‘we’ constituted on the pages of law journals.”). As aforementioned, this Article argues that American federalism, as set forth in the text and structure of the Constitution, invites interpretive choices by judges, legislators, and policymakers. See supra note 19 and accompanying text. The subject thus warrants consideration by all participants in the legal community, though it is ultimately the job of the Supreme Court to provide definitive interpretive guidance to the rest (as the Article recommends). 39.See generally David J. Barron, Fighting Federalism with Federalism: If It’s Not Just a Battle Between Federalists and Nationalists, What Is It?, 74 FORDHAM L. REV. 2081 (2006) (discussing how different Supreme Court justices have implicitly invoked different models of federalism in justifying their analyses).
40.See Tug of War, supra note 1, at 629-43. 41.See id., at 522-39. (discussing the relationship between federal restraint during the Katrina aftermath and New Federalism ideals); infra note 92 (detailing public disapproval of federal restraint during the relief effort).
42.Equally shameful were the lingering dynamics of racial unfairness apparent in these images of abject poverty. See, e.g., Representative John Lewis, “This is a National Disgrace”, NEWSWEEK, Sept. 12, 2005, at 52 (“It’s so glaring that the great majority of people crying out for help are poor, they’re black. There’s a whole segment of society that’s being left behind.”). 43.See, e.g., Joe Whitley et al., Homeland Security After Hurricane Katrina: Where Do We Go from Here?, 20 NAT. RESOURCES & ENV’T 3 (2006) (describing the failures of state and federal coordination during the Katrina response). 44.For a compilation of documents collected by congressional investigators, including a conference call transcript between state and federal authorities before Katrina struck New Orleans, see Eric Lipton, Key Documents Regarding the Government Response to Katrina, http://www.nytimes.com/ref/national/nationalspecial/10katrina-docs.html (last visited Mar. 15, 2007).
45.U.S. DEP’T OF HOMELAND SEC., NATIONAL RESPONSE P LAN 6 (2004) [hereinafter NRP]. For an excellent review of the federal statutory framework dictating federal involvement in disaster response, see DANIEL A. FARBER & JIM CHEN, DISASTERS AND THE LAW: KATRINA AND BEYOND 24–56 (2006). 46.NRP, supra note 45, at 8, 15. 47.In particular, former FEMA Director Michael Brown did not fare well in media accounts of his performance. See, e.g., Paul Krugman, Op-Ed., The Effectiveness Thing, N.Y. TIMES, Feb. 6, 2006, at A23 (characterizing Brown’s performance as “ludicrous”); see also Evan Thomas et al., How Bush Blew It, NEWSWEEK, Sept. 19, 2005, at 30, 38 (questioning Brown’s credentials for appointment as head of FEMA).
48.See NRP, supra note 45, at 9. 49.The New York Times described the crippling effect on the National Guard: The morning Hurricane Katrina thundered ashore, Louisiana National Guard commanders thought they were prepared to save their state. But when 15-foot floodwaters swept into their headquarters, cut their communications and disabled their high-water trucks, they had their hands full just saving themselves. For a crucial 24 hours after landfall on Aug. 29, Guard officers said, they were preoccupied with protecting their nerve center from the waves topping the windows at Jackson Barracks and rescuing soldiers who could not swim. The next morning, they had to evacuate their entire headquarters force of 375 guardsmen by boat and helicopter to the Superdome. It was an inauspicious start to the National Guard’s hurricane response, which fell so short that it has set off a national debate about whether in the future the Pentagon should take charge immediately after catastrophes. Scott Shane & Thom Shanker, When Storm Hit, National Guard Was Deluged Too, N.Y. TIMES, Sept. 28, 2005, at A1. 50.WHITE HOUSE, THE FEDERAL RESPONSE TO HURRICANE KATRINA: LESSONS LEARNED 42 (2006), available at http://www.whitehouse.gov/reports/katrina-lessons-learned.pdf. According to the White House’s own report: An important limiting factor of the Federal response . . . is that the Federal response is predicated on an incident being handled at the lowest jurisdictional level possible. A base assumption to this approach is that, even in cases where State and local governments are overwhelmed, they would maintain the necessary incident command structure to direct Federal assets to where they are most needed. In the case of Katrina, the local government had been destroyed and the State government was incapacitated, and thus the Federal government had to take on the additional roles of performing incident command and other functions it would normally rely upon the State and local governments to provide.
how are resources managed—and we must create an expedited, transparent, and effective contracting and contract oversight process. Id. 55.42 U.S.C. §§ 5121–5205 (2000). 56.Whitley et al., supra note 43, at 4–6. 57.Id. at 4. 58. Id.
59. Id. 60. Id. 61.Id. at 7. 62. Id. 63.Id. at 4.
64. Id. 65. Id. 66. Id. 67.John Warner National Defense Authorization Act for Fiscal Year 2007, Pub. L. No. 109-364, 120 Stat. 2083 (2006) [hereinafter Warner Act]; see also Michael Greenberger, Yes, Virginia: The President Can Deploy Federal Troops to Prevent the Loss of a Major American City from a Devastating Natural Catastrophe 1–2 (U. of Md. Legal Studies Research Paper No. 2006-37), available at http://ssrn.com/abstract=946207 (arguing that the new law neither adds to nor subtracts from the President’s existing powers but merely clarifies them after uncertainty suggested during the Katrina emergency).
68.Whitley et al., supra note 43, at 3. 69.Evan Thomas et al., The Lost City, NEWSWEEK, Sept. 12, 2005, at 41, 48. 70.Lipton et al., Political Issues, supra note 53, at A1. 71.Lipton et al., Breakdowns, supra note 53, at §1; see id. (reporting that “interviews with dozens of officials” supported this contention).
72.See Thomas et al., supra note 69, at 48–49 (“Beginning early in the week, Justice Department lawyers presented arguments for federalizing the Guard, but Defense Department lawyers fretted about untrained 19-year-olds trying to enforce local laws . . . .”). 73.Thomas et al., supra note 47, at 40. 74. Id. 75.See id. The troops of each state’s National Guard report to their Governor unless they are “federalized” by Presidential order in accordance with the terms of the Stafford Act. See 42 U.S.C. §§ 5191–5192 (2000) (authorizing the President to declare disaster emergencies and direct federal government response). 76.Thomas et al., supra note 47, at 40.
77. Id. 78. Id. 79. Id. 80. Id. 81.John M. Broder, Guard Units’ New Mission: From Combat to Flood Duty, N.Y. TIMES, Aug. 30, 2005, at A13. 82.See Karen Tumulty et al., 4 Places Where the System Broke Down: The Governor, TIME, Sept. 19, 2005, § 2, at 34. Time reported: Further tangling the post-Katrina disaster effort was a struggle for power. On the Friday after the hurricane, as the Governor met with Bush aboard Air Force One on the tarmac of the New Orleans airport, the President broached a sensitive question: Would Blanco relinquish control of local law enforcement and the 13,268 National Guard troops from 29 states that fall under her command? . . . [S]he thought the request had a political motive. It would allow Washington to come in and claim credit for a relief operation that was finally beginning to show progress. Blanco asked for 24 hours to consider it, but as she was meeting at midnight that Friday night with advisers, [Chief of Staff Andrew] Card called and told her to look for a fax. It was a letter and memorandum of understanding under which she would turn over control of her troops. Blanco refused to sign it.
Id.; see also Katrina Aftermath, Louisiana: Don’t Want You on My Dance Card, AMERICAN POLITICAL NETWORK, THE HOTLINE, Sept. 8, 2005, at 7 (discussing Governor Blanco’s rejection of the White House proposal for federal control of troops in Louisiana). 83.It remains unclear why Blanco did not, given that the state resources at her disposal had proved insufficient to manage the relief effort independently. Viewed most generously, it may be that she was reluctant to turn control over to a federal government that had so far shown nothing but incompetence in its own handling of the disaster. Viewed less generously, her decision to refuse federal aid in the face of state incapacity tyrannically exacerbated the suffering of her own citizens by contributing to the delay. If she refused to relinquish control on federalism grounds while being unable to provide the needed resources independently, then her view of federalism warrants just as much criticism as that of the federal government. See supra note 52 and accompanying text (discussing Michael Brown’s testimony on the role of federalism considerations during the response effort). 84.Under both the Stafford Act and the NRP, the President may federalize emergency response at the request of a state’s governor. See supra notes 46 & 75 and accompanying text. 85.Greenberger, supra note 67, at 11 (internal quotation marks omitted).
federalism quandary: what does the Constitution tell us about when the United States exercises “preeminent responsibility and authority”? Although John Yoo is convinced that the text authorizes at least some measure of federal disaster response without a gubernatorial request, the question is unsettled.
uncertainty makes President Bush’s decision not to invoke his potential authority, especially in the face of such hideous human suffering and public pressure to act,91 all the more significant.
actions of this Administration, regardless of the consequences to our Constitution or civil liberties.”). 95.For example, Scott L. Silliman, Executive Director of Duke University School of Law’s Center on Law, Ethics and National Security, believes that delays were caused not by the limitations of the Posse Comitatus Act, which generally precludes the use of federal troops for domestic security concerns, but by confusion over the lines of authority between President Bush and Governor Blanco: “I think the problem was you had two heads of state . . . each having the authority, but one waiting for the other to act.” Anne Plummer, Loosening Restrictions on the Military Enforcing Civil Law Unwise, Say Critics, CONG. Q. WKLY., Sept. 24, 2005, at 2550 (internal quotation marks omitted). 96.See id. Silliman’s interpretation, of course, suggests another possible explanation for the administration’s reluctance to intervene despite an arguable legal basis for doing so: the desire to pass the hot potato and avoid responsibility for an intractable situation. See Tug of War, supra note 1,at 588-91. 97.E.g., Lewis, supra note 42, at 52.
98.Shane & Shanker, supra note 49, at A1. 99.See supra note 53 and accompanying text. 100.Katrina’s Official Death Toll Tops 1,000, CNN.COM, Sept. 21, 2005, http://www.cnn.com/2005/US/09/21/katrina.impact. 101.Lipton et al., Breakdowns, supra note 53, at A1 (quoting official reports of thirty-four deaths: ten at the Superdome and twenty-four at the convention center).
102.Id. Food and water supplies stashed at the planned emergency shelter of the Superdome ran out within the first few days after Katrina made landfall. Id. After the Superdome had filled beyond all capacity, an additional 15,000 refugees were directed to the convention center, where there were no food or water supplies. Id.; see also John Riley & Craig Gordon, Katrina—What Went Wrong, NEWSDAY, Sept. 3, 2005, at A4 (describing the deplorable conditions in the convention center). 103.Lipton et al., Breakdowns, supra note 53, at A1 (citing Chief Lonnie C. Swain, an assistant police superintendent who oversaw ninety police officers on patrol at the Superdome). 104.See id. (quoting Captain Jeffrey Winn, head of the convention center’s police SWAT team: “The only way I can describe it is as a completely lawless situation.”). 105.Shane & Shanker, supra note 49, at A1.
106.Barbara Kantrowitz & Karen Breslau, Some Are Found, All Are Lost, NEWSWEEK, Sept. 19, 2005, at 51. Young children were often separated from parents during chaotic boat rescues and bus evacuations. Id. at 52. 107.See Lester R. Brown, Global Warming Forcing U.S. Coastal Population to Move Inland, EARTH POL’Y INST., Aug. 16, 2006, http://www.earth-policy.org/Updates/2006/Update57.htm (explaining that Hurricane Katrina forced one million people to move inland from the afflicted coastal cities); see also Eric Lipton, Storm and Crisis: Hurricane Evacuees Face Eviction Threats at Both Their Old Homes and New, N.Y. TIMES, Nov. 4, 2005, at A20 (discussing the large influx of displaced Katrina victims to Texas). For a graphical depiction of Katrina refugee displacement, see Kantrowitz & Breslau, supra note 106, at 53. Refugees have fled to forty-nine different states and the District of Columbia. See Press Release, White House, Fact Sheet: Gulf Coast Update: Hurricane Relief, Recovery, and Rebuilding Continues (Mar. 8, 2006) [hereinafter Gulf Coast Fact Sheet], available at http://www.whitehouse.gov/news/releases/2006/03/20060308-8.html (noting the federal aid flowing to local education agencies in forty-nine states and the District of Columbia for displaced school children). 108.Gulf Coast Fact Sheet, supra note 107. This is more than “double the combined total of Individuals and Households Assistance Program (IHP) dollars provided for six major U.S. natural disasters occurring since 1992.” Id.
109.See, e.g., Oscar Corral, Stranded Pets Facing Starvation, MIAMI HERALD, Sept. 5, 2005, at A13 (noting that many pets were abandoned because their owners could not bring them on evacuation buses); Norma Mendoza, Task Force Members Describe Devastation in New Orleans, EDWARDSVILLE INTELLIGENCER, Oct. 11, 2005, at 1, 3 (“Another sad sight was the dogs that were everywhere, strays and abandoned pets that rescue workers wouldn’t allow people to bring with them. Some died, trapped in the houses where they were left. Others were starving and the officers had nothing to give them.”). 110.See, e.g., Photo Gallery: Pets, Hurricane Katrina’s Other Victims, NAT’L GEOGRAPHIC.COM, Sept. 8, 2005, http://news.nationalgeographic.com/news/2005/09/0908_050908_katrina_pets.html (illustrating the anguish of animals abandoned in Katrina’s wrath); cf. Karlyn Barker & NiaMalika Henderson, Plight of Stranded Animals Worsening Daily, WASH. POST, Sept. 8, 2005, at B4 (estimating that thousands of animals abandoned by their owners after Katrina were in peril). 111.See Pam Radtke Russell, Gulf Platform Damage Still Being Assessed, NEWHOUSE NEWS SERV., Mar. 23, 2006 (on file with author) (explaining that the damage to oil and gas platforms from Katrina was the worst ever seen in the Gulf of Mexico, and that the harm caused by rigs was equally noteworthy). 112.Mike Taibbi, Oil Coats Homes, Water After Katrina, MSNBC.COM, Nov. 8, 2005, http://www.msnbc.msn.com/id/9972220.
113.Robert J. Samuelson, Hitting the Economy, NEWSWEEK, Sept. 12, 2005, at 54. 114.See Thomas et al., supra note 47, at 34–35 (listing environmental hazards affecting public health). 115.Gulf Coast Fact Sheet, supra note 107. As high as this figure seems, it nevertheless falls short of the $150 billion of federal aid that experts had predicted would be necessary for recovery efforts. Nina J. Easton, Katrina Aid Falls Short of Promises, BOSTON GLOBE, Nov. 27, 2005, at A1. 116.See Press Release, FEMA, By the Numbers: FEMA Recovery Update in Louisiana (Mar. 24, 2006), available at http://www.fema.gov/news/newsrelease.fema?id=24505 (allocating $165 million to disaster unemployment assistance). 117.See id. (allocating $700 million in loans to local governments in need of assistance). 118.FEMA has already dispersed checks in the amount of $3.5 billion for rental assistance and home restoration. Id. 119.Over $1.9 billion has already been set aside for such public assistance undertakings. Id. 120.Gulf Coast Fact Sheet, supra note 107.
have long learned to fear. River and wetland management choices along the Mississippi Delta exacerbated the flooding that proved the worst of New Orleans’ battles,124 and Americans are right to ask for better long-term planning from the local, state, and federal authorities responsible for these activities.125 Still, it was the bungled humanitarian relief effort—the disorganized response that stranded the sick and injured, separated young children from their parents, and left the most vulnerable members of society struggling to survive amidst prolonged Lord of the Flies conditions126—that triggered public outrage.
4. Coda: Which Federalism? Given the proven ability of the United States to respond quickly and effectively in the face of natural disaster (for example, our immediate and ambitious relief effort in response to the South Asian tsunami just nine months earlier127), what could possibly account for this spectacular failure of governance?
2006, at 47, 56 (recounting the same episode); Thomas et al., supra note 69, at 44–45 (comparing the images of helpless families and children begging for food and water to third-world conditions in Mogadishu or Port-au-Prince). 127.See Brigadier General John Allen, Principal Director of Asia and Pacific Affairs, Office of the Secretary of Defense, “Update—U.S. Government Relief Efforts in Asia,” Foreign Press Center Briefing, Washington, D.C. (Jan. 3, 2005), available at http://www.pacom.mil/speeches/sst2005/050103-wh-presstranscript.shtml (“Within minutes of our notification of this disaster, we began military planning to assist in the U.S. Governmental response to this crisis . . . . Within hours, U.S. forces began to move to the affected area.”); BUREAU OF INT’L INFO. PROGRAMS, U.S. DEP’T OF STATE, GOING THE DISTANCE: THE U.S. TSUNAMI RELIEF EFFORT 2005, at 1 (2005), http://usinfo.state.gov/products/pubs/tsunami/tsunami.pdf (reporting that, at the height of the relief effort, “more than 15,000 U.S. military personnel were involved in providing relief support in the affected region. Twenty-five ships and 94 aircraft were participating in the effort. The U.S. military had delivered about 2.2 million pounds of relief supplies to affected nations . . . .”); see also Ralph A. Cossa, President of the Pacific Forum Center for Strategic and International Studies, South Asian Tsunami: U.S. Military Provides ‘Logistical Backbone’ for Relief Operation, EJOURNAL USA: FOREIGN POLICY AGENDA (Nov.
Brown’s statement is important for three reasons. First, he correctly articulates a central problem of federalism: structural constraints are only meaningful if they are followed in difficult times as well as easy times. For Brown, allowing the federal government to cross federalism’s proverbial line in the sand to satisfy a short-term desire would undermine the very principles of constitutional government.
another Defense Department unique capability: command, control, communications, and coordination. These attributes, critical in wartime, proved equally critical in ensuring an effective, coordinated response.”). 128.See Brown Statement, supra note 52, at 3.
Comment [e2]: Here is where I would like to insert the additional three paragraphs about interjurisdictional regulatory problems (to alleviate the confusing gap left by the omission of thirty pages between here and the preceding paragraph). I am appending the additional text at the end of the chapter, so that inserting it here does not make all following footnotes appear changed (for having been numerically displaced). I have adjusted all supra and infra references within the new footnotes to be self contained (so that they do not refer back to missing parts of the full-length article), and my scan of the other footnotes in the piece suggests that nothing else needs to be changed in light of the numerical displacement of the footnotes that follow.
multiple levels of government. Especially in hindsight, it is hard to imagine a serious argument that preparation and response should have proceeded at an exclusively national or local level. Nevertheless, in accordance with the strictseparationist model, the White House viewed the Katrina response as a properly state regulatory affair, declining to take more aggressive federal initiative because it viewed avoiding interference with (let alone commandeering) state resources as its highest obligation.133 Yet nothing could have proved this view more tragically simplistic than our actual experience in the aftermath of the hurricane. Katrina was clearly a local problem, demanding the protection of public health and safety and the maintenance of domestic law and order that lie at the heart of traditional state function.134 State regulatory concern was implicated in the dispatch of first responders with localized expertise, the provision of humanitarian aid for intrastate evacuees, and the protection and salvage of state infrastructure and private property.
floodwalls failed even though the storm waters did not rise above the level that the walls were designed to hold.
133.See Tug of War, supra note 1, at 527-32. 134.See 16A AM. JUR. 2D Constitutional Law § 313 (2006) (noting that the “state cannot surrender, abdicate, or abridge its police power”). 135.Rip Watson, New Orleans Port Opens to Relief Ships After Katrina, BLOOMBERG.COM, Sept. 6, 2005, http://www.bloomberg.com/apps/news?pid=10000082&sid=adNXIjdn4Z8Q.
136.Thanks to the convenient proximity of rich carbon-based fuels in the Gulf of Mexico to the Port of New Orleans, this region is perhaps the most important energy hub in the continental United States, supplying nearly twenty percent of domestic demand for oil and natural gas. Robert Viguerie, Coastal Erosion: Crisis in Louisiana’s Wetlands, 51 LA. B.J. 85, 86 (2003). 137.Stemming the Tide: The Mississippi River Delta and the Davis Pond Freshwater Diversion Project, LACOAST.GOV, http://www.lacoast.gov/programs/DavisPond/stemming-the-tide.htm (last visited Mar. 15, 2007). 138.Jad Mouawad & Vikas Bajaj, Gulf Oil Operations Remain in Disarray, N.Y. TIMES, Sept. 2, 2005, at C1. 139.See supra notes 107–108 and accompanying text. 140.See Schwartz, supra note 125 (recounting reports that the Army Corps conceded that the levee designs were flawed). 141.U.S. CONST. art. IV, § 4.
threatening health and safety into the foreseeable future,146 there is no quick end to the crisis in sight. In other words, everyone had a stake—but as we now well know, the bifurcated disaster response itself proved disastrous. As the stories of failure after failure in the relief effort unfolded, culpability fell on city, state, and federal agencies alike. The City of New Orleans probably should have considered how the 100,000 New Orleans residents without motor vehicles would be able to heed Mayor Nagin’s evacuation command. The State of Louisiana probably should have considered the wisdom of moving the National Guard headquarters that would coordinate hurricane response to higher ground before the storm. The federal government apparently failed to heed National Weather Service warnings about the scope of the storm and failed to deploy FEMA resources appropriately before the storm.
aggravated by a natural disaster that turned the physical and social landscape of New Orleans into an ideal terrain for criminals.”).
146.See EPA, Response to 2005 Hurricanes: Frequent Questions, http://www.epa.gov/katrina/faqs.htm (last visited Mar. 15, 2007) (providing a forum to address a host of continuing health and safety related issues for the residents of the New Orleans area). 147.See Tug of War, supra note 1, at 527-32. 148.See supra notes 52–53 and accompanying text. 149.That said, the anticommandeering rule of New York and Printz may well have discouraged the White House from “federalizing” the Louisiana National Guard without gubernatorial consent. 150.See Robert A. Schapiro & William W. Buzbee, Unidimensional Federalism: Power and Perspective in Commerce Clause Adjudication, 88 CORNELL L. REV. 1199, 1203-05 (2003) (arguing that the Rehnquist Court’s narrow federalism perspective threatens to impermissibly impinge on proper federal legislative power).
151.Brown Statement, supra note 52, at 3. 152.Thomas et al., supra note 47, at 40.
trajectory of the Supreme Court’s recent federalism rulings,153 and thus hesitated to invoke potential Stafford Act authority to intrude upon the state’s primary role as provider of intrastate relief and law enforcement services.
interjurisdictional nature of the Katrina emergency demonstrates how a problem shaped beyond the comprehension of the strict-separationist model can cause the entire system to crash. Indeed, interjurisdictional problems spawn circumstances that exacerbate the inherent tension between underlying federalism values, with which the New Federalism is ill-equipped to handle. Although symptoms of this mismatch were evident in foundering regulatory responses to less mediagenic interjurisdictional problems preceding Katrina (e.g., the disposal of low-level radioactive waste and the management of respiratory disease in Los Angeles), the Katrina debacle brought home to the nation a clear message: a legal framework built around a theory that does not track the real-world targets of regulatory response is unstable and unsustainable. It also suggested an alternative, at least in the Katrina response, that most Americans collectively imagined was possible.
153.See Tug of War, supra note 1, at 554-63 (discussing the distinct spheres of state and federal power in the New Federalism).
governments to respond, and the relative risks to dual sovereignty checks and balances of crossing into the interjurisdictional gray area. The state and local governments would have made a similar evaluation, to the extent of their capacity. Most Americans apparently believed that the federal interest in saving the lives and relieving the human suffering of its own citizens far overwhelmed the risks to inter-sovereign diplomacy, but in any event, a conclusion would have been reached more efficiently and decisively if freed from the paralysis provoked by the New Federalism approach.154 This paralysis reflects perhaps the most serious trap of binary thinking promoted by the New Federalism, which is its essential suggestion that we must choose between either federalism or interjurisdictional problem-solving. Either we are faithful to the constitutional ideal of dual sovereignty, or we can effectively grapple with the collective action problems that we ask regulation to help us control. New Federalism frames this as the choice by positing the check and balance value as synonymous with federalism in general. But as important as they are, checks and balances are only one of the principles of good government that undergird American federalism.
accountability, localism, problem-solving—all in tension with one another. The interpretive model of federalism that we choose determines how we mediate this tension, and New Federalism’s solution is to privilege checks and balances over all others.
154.See supra note 92 and accompanying text (reviewing public disapproval of the federal response).
jurisprudential standard for interpreting Tenth Amendment claims within a model of Balanced Federalism dual sovereignty that affords both checks and balances. See Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 MD. L. REV. 503, 644-65 (2007). 155. For example, this is arguably the case with regard to the problem of stormwater pollution, which stems both from land uses regulated by municipal governments and water uses regulated by the federal government. See Tug of War, supra note 1, at 576-580. 156. In other words, in this type of interjurisdictional regulatory problem, though the national government could theoretically preempt local involvement as a legal matter, the regulatory target so implicates an area of local concern or expertise that to do so would obstruct, rather than facilitate, meaningful resolution of the problem (as regarding such national security matters as the National Response Plan). 157. E.g., Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (finding that federal courts hearing state law claims under diversity jurisdiction are to apply the substantive laws of those states and not federal common law). 158. E.g., Wayne A. Logan, Creating a “Hydra in Government”: Federal Recourse to State Law in Crime Fighting, 86 B.U. L. REV. 65, 66–67 (2006) (examining the federal government’s use of state law “to help effectuate its burgeoning criminal justice authority” while simultaneously “infus[ing] federal law with the normative judgments of the respective states”).
159. E.g., Gerald F. Hess, The Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA, 18 GEO. INT’L ENVTL. L. REV. 1, 2–4 (2005) (discussing the arbitration decisions in the 1930s and early 1940s between Canada and the U.S. regarding the Trail Smelter, a facility near the border of British Columbia that pumped sulphur dioxide into Washington State). 160. E.g., City of Milwaukee v. Illinois, 451 U.S. 304, 317–19 (1981) (finding that an interstate sewage discharge claim should be resolved under the Federal Water Pollution Control Act, rather than by federal common law). 161. Willson v. Black-Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 251–52 (1829) (acknowledging overlapping state and federal concern in upholding the legality of a state-authorized dam through a waterway subject to the federal navigational servitude).
a preexisting state law requiring that their identities be disclosed). The court observed that “while the State possesses sovereign authority over the operation of its jails, it may not operate them, in respect of INS detainees, in any way that derogates the federal government's exclusive and expressed interest in regulating aliens.” Id.
pandemic). 177. By contrast, some have argued that the federal government should devolve more of such regulatory responsibility to the states. See, e.g., Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 130, 135 (2005) (“Because most environmental problems are local or regional in nature, there is a strong case that most . . . environmental problems should be addressed at the state and local level.” (footnote omitted)). Despite these arguments, however, few propose the abolition of the federal Clean Air Act and Clean Water Act, which fulfill a classic centralized regulatory role of preventing negative externalities and remedying collective action problems.
Report "Law School - SSRN papers"


1. The effect of a decree as an adjudication conclusive upon the parties is not to be determined by isolated passages in the opinion considering the rights of the parties, but upon an examination of the issues made and intended to be submitted, and which it was intended to decide. P. 272 U. S. 42.
2. In the "Greer County case," (United States v. Texas, 162 U. S. 1), it was conclusively determined that the boundary line between Texas and the territories of the United States followed the line of the true 100th meridian from its intersection with the South Fork of Red River, but the precise location of the meridian line was left open. P. 272 U. S. 39.
3. A boundary line between two governments which has been run out, located, and marked upon the earth, and afterwards recognized and acquiesced in by them for a long course of years, is conclusive, even if it be ascertained that it varies somewhat from the correct course; the line so established taking effect, in such case, as a definition of the true and ancient boundary. P. 272 U. S. 44.
4. Upon the facts, it is found that the "Jones, Brown and Clark Line," run in 1859 and 1860 as a location of the 100th meridian between the south bank of the Red River and the parallel of thirty-six degrees thirty minutes north latitude, and claimed by Oklahoma to be the boundary between that state and Texas, has not been accepted and acquiesced in as the established boundary by the United States, Texas, or Oklahoma. P. 272 U. S. 44.
5. Qauere, whether twenty-four years' acquiescence by one state in the possession of territory under claim of right, and in the exercise of dominion and sovereignty over it by another state, is sufficient in time to found a prescriptive right in the latter. P. 272 U. S. 47.
6. The fact that the Territory and the State of Oklahoma in succession have continuously for twenty-four years enforced their civil and criminal laws over the area in dispute does not establish the state's claim to it by prescription in view of the fact that, even during that period, assertion of a claim of right (by the United States when Oklahoma was a territory), on the one hand, and acquiescence therein (by Texas), upon the other, were not continuous. P. 272 U. S. 47.
7. Where, prior to the admission of Oklahoma to statehood, a federal surveyor, pursuant to an Act of Congress, attempted to locate the true intersection of the 100th meridian with the South Fork of the Red River, and marked the location by a monument, and this was approved by the Secretary of the Interior and adopted by Texas, but not by Congress, as marking the corner in the boundary, held that the facts did not sustain the claim of Texas that the boundary was thus established by acquiescence, as a line to be run north from the monument. P. 272 U. S. 48.
8. The boundary between Oklahoma and the Panhandle of Texas is the line of the true 100th meridian extending north from its intersection with the south bank of the South Fork of Red River to its intersection with the parallel of thirty-six degrees and thirty minutes. P. 272 U. S. 49.
Original suit brought by Oklahoma against Texas to establish their boundary on the Red River. A number of opinions, orders, and decrees of the Court relative to that primary phase of the litigation have already been reported. The present opinion deals with another portion of the boundary which was brought into the case by the counterclaim of Texas. See 269 U. S. 314, 539, and other references in the opinion.
This suit was brought by the State of Oklahoma against the State of Texas in 1919 to settle a controversy between them over that portion of their common boundary extending westwardly along the course of the Red River from the southeast corner of Oklahoma to the 100th meridian of longitude west from Greenwich. This portion of the boundary line, it has been decided, extends along the south bank of the river. 256 U. S. 256 U.S. 70; 256 U. S. 256 U.S. 608; 258 U. S. 258 U.S. 574.
and retraced and extended in 1860 by John H. Clark; and, on the other side, Texas claims that it is a more easterly line, running north from a monument established by Arthur D. Kidder in 1902 to mark the intersection of the meridian and the Red River.
1. Oklahoma and the United States contend that, by the decision and decree of this Court in United States v. Texas, 162 U. S. 1, commonly called the Greer County case, it was conclusively determined and decreed that the boundary line followed the line of the meridian as surveyed and marked on the ground by Jones, Brown and Clark, and the matter thereby became res judicata. 2. Oklahoma contends that, independently of this adjudication, the Jones, Brown, and Clark line has been recognized as the true location of the meridian through a long course of years, and is established as the boundary line by acquiescence and by long continued exercise of jurisdiction over the strip in dispute. 3. Texas, on the other hand, contends that a line running north from the Killer monument is the established boundary.
of Texas into the Union in 1845. [Footnote 4] In 1850, however, by a legislative compact between the United States and the State of Texas, it was agreed that the northern boundary line of Texas should run west with the parallel of 36 degrees 30 minutes from its intersection with the 100th meridian; [Footnote 5] so that we are not now concerned with the portion of the meridian extending north of that parallel.
Since 1850, many steps have been taken at long intervals looking to the establishment of the line of the meridian between the Red River and the parallel. To rightly understand the course of the legislation, it should be borne in mind first, that the Red River forks about sixty miles east of the strip of land now in dispute, the South Fork passing along its southern end, and the North Fork crossing it about forty miles to the north, and, secondly, that, on Melish's map of the United States, the 100th meridian was erroneously shown as crossing the Red River more than one hundred miles east of this strip, and east of the fork in the River. [Footnote 6] These two facts gave rise to a controversy in reference to the location of the other boundary line along the course of the Red River which, although now long determined, was interwoven with the question as to the location of the line of the meridian north of the river and complicated the issues involved in its settlement. In the light of this preliminary statement, we proceed to set forth, in chronological order, the material facts [Footnote 7] necessary to the determination of the contentions now made.
Pending action by Congress in this matter, the United States, by a treaty made with the Choctaw and Chickasaw Indians in 1855, [Footnote 9] awarded them a tract of land in the Indian territory whose western boundary was described as running north from the Red River along the 100th meridian to the main Canadian River. In 1857, the Commissioner of Indian Affairs, for the purpose of marking the boundaries of the Indian lands, employed two contract surveyors, A. H. Jones and H. M. C. Brown, to survey and mark the line of the meridian from the north bank of the main Red River to the north boundary of the Creek or Seminole country.
"No part of said boundary survey has ever been officially agreed upon or accepted by the two governments as contemplated in the Act of Congress authorizing the survey."
In 1890, Congress created the Territory of Oklahoma out of a portion of the Indian Territory bounded on the west and south by the boundary lines of the State of Texas; [Footnote 25] and by the same Act directed that a suit in equity be brought in this Court on behalf of the United States against the State of Texas to settle the controversy as to the title to the land included in Greer County lying east of the 100th meridian, and between the Forks of the Red River. The suit was instituted in the same year.
In 1891, the surveys made by Clark, the United States commissioner, under the Act of 1858, of the western and northern boundary lines of Texas, were "confirmed" by an Act of Congress [Footnote 26] and by a Joint Resolution of the Texas Legislature, [Footnote 27] but neither the Act nor the Resolution made any reference to the survey of the eastern boundary.
100th meridian of longitude between the North Fork of the Red River and the south bank of the South Fork, called Greer County, constituted no part of the territory belonging to Texas, but was subject to the exclusive jurisdiction of the United States. United States v. Texas, supra at 162 U. S. 90.
"ascertain the condition of the old boundary lines, the amount of error in the original surveys, and . . . the changes which a true determination would involve,"
"make a careful retracement of the 100th meridian as closed upon in the survey of public lands in Oklahoma from the Red River north to the parallel."
Before Kidder had completed this supplemental work, the Texas Legislature, in April, 1903, authorized the appointment of a commissioner to run and mark, with a commissioner for the United States, the boundary lines between Texas and the Territories of Oklahoma and New Mexico. [Footnote 31] This Act recited that Kidder had duly fixed a monument at the intersection of the true 100th meridian with the Red River, as provided by the Act of Congress of 1901, which properly marked the boundary, and required a resurvey of the lines between Texas and Oklahoma, and directed that the monument established by Kidder as the point of intersection should "be accepted as correct."
to the House of Representatives in December, 1905. [Footnote 32] The portion of this report dealing with the 100th meridian shows that he retraced the entire Jones, Brown, and Clark line as it had been reestablished and closed upon by the various contract surveyors between 1872 and 1875, and found that, beginning at the initial monument of Jones and Brown on the bank of the South Fork of Red River, it deflected gradually to the east, and intersected the line of the parallel 743.16 feet west of the line of the 100th meridian extended north through the monument which he had previously placed on the South Fork. He found no evidence of the monument established by Clark in 1860 to mark this intersection. At the easterly point which Kidder determined to be the intersection of the parallel and the true meridian, he placed a concrete and iron monument, but he did not mark the intervening line of the meridian. He also found that, since the execution of the surveys closing upon the Jones, Brown, and Clark line, the United States had patented and disposed of public lands on the east, and that Texas had apparently closed its surveys on the same line for a large part of the distance.
great interest to the department because they involve both public lands and lands of the Choctaw Indians, and, until they are adjusted, present problems and embarrassments which cannot be solved or removed until the lines are definitely fixed and marked. The continued unsettled condition of these boundary lines adds to the problems and involves the government, settlers on the public lands, and citizens of the Indian tribes and of the State of Texas in trouble and expense . . . of which they should be relieved at the earliest possible moment."
In 1910, the House Committee on Indian Affairs recommended for passage another Joint Resolution introduced by the Representative from Texas for the creation of a commission to establish and mark the boundary lines between Texas and the Territories of the United States corresponding to the Joint Resolution which had been recommended by the Secretary of the Interior in 1907, [Footnote 38] but no further action was taken by Congress in reference to the matter.
having refused to make a survey for the purpose of obtaining a grant, it was held by the Texas Court of Civil Appeals in 1912 that mandamus would not lie to compel him so to do, on the ground, substantially, that, as the undisputed facts show that the State of Texas was not exercising jurisdiction over this land, it was not the duty of the county surveyor to survey lands which the political powers of this state recognized as lying beyond its limits, and the court had no jurisdiction to determine whether the de facto boundary line was the de jure boundary of the state, this being a political, and not a judicial, question. Wortham v. Sullivan, 147 S.W. 702. On the other hand, however, surveys having been made by other county surveyors and the applications returned to the General Land Office of Texas, three patents were issued to Wortham by the State of Texas later in the same year covering 2,002 acres of the strip of land in dispute; this being the only part of this strip which Texas has ever attempted to patent. Since that time, it is stipulated, the award to Wortham of other lands in this strip has been held in abeyance "on account of the shadow of doubt cast upon the legal status of the aforesaid Kidder line," but "the General Land Office of Texas has in no sense abandoned its claim to the area west of and adjacent to" that line.
its contention in respect to the location of the 100th meridian.
In 1923, the United States Coast and Geodetic Survey undertook to locate the portion of the 100th meridian in controversy by a modern and scientific method of triangulation, and concluded that the true meridian ran 371.5 feet east of the Kidder monument.
"the United States, the Territory of Oklahoma, and the State of Oklahoma, in succession, have continuously enforced their laws, civil and criminal, over the strip here in dispute ever since the decision in the Greer County case."
It further appears that, prior to May 3, 1920, the United States had disposed of 20,657 acres in the strip in dispute by patents issued on homestead entries and public sales, for which it had collected $8,026; that 3,118 acres had been included in the school and university grants to Oklahoma, and that there were then 318 acres in pending entries, leaving, it was estimated, 118 acres of vacant land. The dates of these patents and grants are not shown.
the decision and decree in the Greer County case, and, also, independently of that adjudication, by long continued recognition, acquiescence, and the exercise of jurisdiction, and, on the other side, that a line running north from the Kidder monument is the established boundary. We take up these contentions in their order.
1. The Greer County suit was brought by the United States against Texas solely to settle the controversy as to the land in "Greer County" lying east of the 100th meridian and between the Forks of the Red River. It did not involve any part of the boundary north of the River. Nor did it involve, under the issues submitted, the precise location of the meridian between the two Forks, but merely the general questions whether, under the treaty of 1819, the boundary line along the course of the Red River followed the North or South Fork, or either of them, to the true meridian.
On the hearing, as appears from the opinion, the United States contended that, under the treaty of 1819, the boundary line following the course of the Red River westward to the 100th meridian went along and up the South Fork, as the continuation or principal fork of the River (p. 162 U. S. 34). Texas, on the other hand, contended, first, that, as the treaty declared that the boundary line should be as laid down on Melish's map, which located the 100th meridian east of the forks, thereby throwing the entire area in dispute west of the meridian, it was immaterial whether this location of the meridian on the map, being conclusive upon both governments, was astronomically correct or not, or whether the one or the other fork was the continuation of the main river, and second, in the alternative, that even if the treaty referred to the true meridian, the course of the River followed the North Fork, and not the South (pp. 162 U. S. 34-35).
meridian." Page 162 U. S. 42. Taking up then the remaining question whether, as the United States contended, the line following the course of the Red River westward met the 100th meridian at the point where the South Fork of the River crossed the meridian, or whether, as Texas contended, it ran up the North Fork northwestwardly until it crossed the meridian, the Court, after a detailed consideration of the evidence, concluded that the South Fork more nearly met the requirements of the treaty, and was to be followed as the boundary line to its intersection with the true meridian (pp. 162 U. S. 42 et seq.). There was, however, no statement in the opinion either that this point of intersection was fixed at the Jones and Brown initial monument or that Jones, Brown, and Clark had correctly located the line of the meridian.
"ordered, adjudged and decreed that the territory east of the 100th meridian of longitude, west and south of the river now known as the North Fork of Red River, and north of a line following westward, as prescribed by the treaty of 1819 between the United States and Spain, the course, and along the south bank, both of Red River and of the river now known as the Prairie Dog Town Fork or South Fork of Red River until such line meets the 100th meridian of longitude -- which territory is sometimes called Greer County -- constitutes no part of the territory properly included within or rightfully belonging to Texas at the time of the admission of that state into the Union, and is not within the limits nor under the jurisdiction of that state, but is subject to the exclusive jurisdiction of the United States of America."
P. 262 U. S. 90.
United States followed the line of the 100th meridian as surveyed and marked by Jones, Brown, and Clark. The sole questions under the issues submitted were whether the erroneous location of the meridian on Melish's map was controlling, and, if not, whether the boundary line followed the North or South Fork to the intersection with the true meridian. No issue was submitted as to whether, if the South Fork were to be followed, the Jones, Brown, and Clark line was to be taken as establishing the exact location of the true meridian and fixing the western boundary of the tract in dispute. And while it was said in the opinion arguendo, in disposing of the first issue, that Texas had recognized the true meridian to be as located by the United States, and the two governments had declared by official action that it was located on the line marking the eastern boundary of four of the counties established by Texas in 1876, the proof leaving no doubt that the true meridian was immediately east of these counties, this was said not as a determination of the exact location of the true meridian for the purpose of a precise adjudication, but merely as one of the reasons leading to the general conclusion that, under the treaty of 1819, the boundary was intended to follow, as the parties had recognized, the line of the true meridian, and not the location laid down on Melish's map. This is emphasized and made clear by the terms of the decree, which merely adjudged, in general terms, that the land lying east of the meridian and between the two forks was not the property of Texas, but within the exclusive jurisdiction of the United States, and neither adjudged that the true meridian followed the Jones, Brown, and Clark line nor otherwise fixed its precise location.
to be submitted, and which it was intended to decide. Vicksburg v. Henson, 231 U. S. 259, 231 U. S. 272-273; United Shoe Mach. Co. v. United States, 258 U. S. 451, 258 U. S. 460.
Thus tested, the effect of the decree insofar as it related to the western boundary of the tract in dispute was merely that it followed the line of the true meridian. In other words, the location of the boundary along the true meridian was left in the same situation under the decree as that of the south bank of Red River and of the South Fork. Each was declared in general terms to be the boundary, but the precise location of neither was adjudged. It was later held by this Court that, while so much of this decree as adjudged that the boundary between the territories of the United States and Texas followed the south bank of Red River and of the South Fork was res judicata and conclusive upon the parties, Oklahoma v. Texas, 256 U. S. 70, 256 U. S. 93, it still needed to be determined what constituted the south bank of the river and where along that bank the true boundary line was to be located. Oklahoma v. Texas, 256 U. S. 602, 256 U. S. 608. And so, while the decree likewise conclusively determined that the boundary line between Texas and the territories of the United States followed the line of the true 100th meridian from its intersection with the South Fork of Red River, it was for like reason not an adjudication as to the precise location of the meridian line, but left this matter open and undetermined.
South Fork to be established. And the recognition of the fact that the precise location of the boundary line along the meridian had not been definitely determined nor settled was the basis not only of the subsequent recommendations of the Secretary of the Interior for the settlement of the boundary, but of the reports of the House committees recommending legislation for running and marking the line.
2. The contentions that the Jones, Brown, and Clark line has been recognized and adopted as the location of the 100th meridian for a long course of years, and is established as the boundary by acquiescence and the exercise of jurisdiction, are made by Oklahoma alone, and not by the United States.
It is well settled that governments, as well as private persons, are bound by the practical line that has been recognized and adopted as their boundary, Missouri v. Iowa, 7 How. 660, 48 U. S. 670; New Mexico v. Colorado, 267 U. S. 30, 267 U. S. 40, and that a boundary line between two governments which has been run out, located, and marked upon the earth, and afterwards recognized and acquiesced in by them for a long course of years, is conclusive even if it be ascertained that it varies somewhat from the correct course, the line so established taking effect in such case as a definition of the true and ancient boundary, Virginia v. Tennessee, 148 U. S. 503, 148 U. S. 522; Maryland v. West Virginia, 217 U. S. 1, 217 U. S. 42; New Mexico v. Colorado, supra, at 267 U. S. 40. We find, however, upon the facts, that the Jones, Brown, and Clark line has not been established as the boundary line by any such long continued recognition and acquiescence.
boundary of certain Indian lands. The retracement and reestablishment of this line, as it had been extended by Clark in 1860, and the subdivision of the public lands into townships closing on it between 1872 and 1875, was merely the action of the Land Department. Congress itself did not in any manner recognize this line as constituting the boundary of Texas.
opinion as to this crossing should be settled. In 1891, although the surveys made by Clark, under the Act of 1858, of the Western and northern boundary lines of Texas were "confirmed" both by Congress and by the Texas Legislature, neither confirmed his survey of the eastern boundary line. In 1892, Texas separately employed Pritchett to establish the intersection of the meridian with the River. In 1901, after it had been settled by the decision in the Greer County case that the boundary line followed the South Fork of the River to its intersection with the true meridian, Congress declared that the true intersection of this meridian with the South Fork had not been fixed, and directed that it be established and a monument erected. This was done by Kidder in 1902, and reported by the Secretary of the Interior as a determination and establishment of the true intersection. The Texas Legislature in 1903 declared that Kidder had duly fixed the intersection of the true meridian with the River, and that his monument properly marked the boundary, and should be "accepted as correct." And from that time to the filing of its counterclaim in 1920, Texas never abandoned this contention, or recognized in any manner the Jones, Brown, and Clark line as the boundary; while, on the other hand, the Secretary of the Interior not only approved Kidder's location of the true intersection, but, in 1907, recommended that it be "accepted as correct" in establishing the boundary. And finally, in 1919, the Texas Legislature specifically asserted the existence of a controversy concerning the boundary line.
boundary, and fall far short of showing its practical adoption. On the contrary, the course of the legislation on both sides, instead of treating the boundary as settled and acquiesced in, dealt with it as a matter requiring settlement. Arkansas v. Tennessee, 246 U. S. 158, 246 U. S. 172.
Nor is the fact, as to which the parties have stipulated, that, since the decision in the Greer County case, the United States and the Territory and Oklahoma in succession have continuously enforced their civil and criminal laws over the territory in dispute sufficient to establish Oklahoma's claim to this territory by prescription. The general principle of public law that, as between states, long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it is conclusive of the rightful authority, Rhode Island v. Massachusetts, 4 How. 591, 45 U. S. 638; Indiana v. Kentucky, 136 U. S. 479, 136 U. S. 510; Virginia v. Tennessee, supra, at 148 U. S. 522; Louisiana v. Mississippi, 202 U. S. 1, 202 U. S. 53; Maryland v. West Virginia, 217 U. S. 1, 217 U. S. 42, a principle by which prescription founded on length of time is regarded as establishing an incontestable right, does not apply here.
boundary between Texas and the Territory, had not as yet been fixed, thereby disavowing the Jones and Brown initial monument as an established corner, and directed that the true intersection be established. Thereafter, Kidder having established this intersection, with the approval of the Secretary of the Interior at a point about three-quarters of a mile east of the Jones and Brown monument, the Texas Legislature immediately asserted and has continued to assert that his monument correctly located the true intersection and properly marked the boundary. And, on the other hand, although Congress did not accept the Kidder monument as correct, it did not at any time assert any claim that the jurisdiction of the United States extended to the Jones, Brown, and Clark line.
It is plain that, under these circumstances, essential elements necessary to the establishment of a prescriptive right by an exercise of jurisdiction acquiesced in for a long period of years are lacking.
between the meridian and the Jones, Brown, and Clark line, that the Secretary submitted drafts of two bills for the running and marking of the boundary line, one of which specifically provided that Kidder's monument should be accepted as correct, and that various other bills and resolutions were from time to time introduced in the House of Representatives for the same purpose, some of which were recommended for passage by the committees to which they were referred, Congress nevertheless took no further action as to this matters, and neither accepted Kidder's monument as the correct location of the intersection of the true meridian and the South Fork nor provided for the establishment and marking of the boundary northwardly therefrom. It is entirely clear that, under these circumstances, the line running north from the Kidder monument, which has never been run or marked upon the ground, cannot be regarded as the established boundary acquiesced in and adopted by the parties.
4. On the entire case, our conclusions therefore are: that neither the Jones, Brown, and Clark line, nor a line running north from the Kidder monument has been established as the boundary line, that the boundary is the line of the true 100th meridian extending north from its intersection with the south bank of the South Fork of Red River to its intersection with the parallel of 36 degrees 30 minutes, and that this line should now be accurately located and marked by a commissioner or commissioners appointed by the Court, whose report shall be subject to its approval.
Treaties and Conventions of the United States, 1079.
Joint Res. 5 Stat. 797; Joint Res. 9 Stat. 108.
9 Stat. 446, c. 49; 2 Sayles' Early Laws of Texas, p. 267; President's Proclamation, 9 Stat. 1005.
See copy of Melish's map, 162 U. S. 162 U.S. 1, 162 U. S. 50, also House Report No. 1595, 58th Cong., 2d Sess., p. 2.
These are shown, in the main, by an agreed statement of facts.
3 Gammel's Laws of the State of Texas, p. 1525. And see prior Joint Resolution to the same effect. Id., p. 206.
11 Stat. 310, c. 92.
Clark's reports appear in Sen.Ex.Doc. No. 70, 47th Cong., 1st Sess., and a summary in House Doc. No. 635, 57th Cong., 1st Sess., p. 14.
See report of Commissioner of the General Land Office, House Report No. 1282, 47th Cong., 1st Sess., and House Doc. No. 635, 57th Cong., 1st Sess., p. 12. It appears that Jones and Brown adopted as the beginning of their survey the monument which had been erected earlier in the same year by Daniel G. Major, the astronomer for Indian boundary surveys.
2 Sayles' Early Laws of Texas, p. 490. This meridian was described in the Act as "the twenty-third degree of west longitude," this being the longitude from Washington. The tract is that marked on a map in 162 U. S. 162 U.S. 1, 162 U. S. 22, as "Unassigned Land."
See Clark's report, Sen.Ex.Doc. No. 70, 47th Cong., 1st Sess., p. 300.
See House Report No. 1595, 58th Cong., 2d Sess., p. 3.
See report of Arthur D. Kidder, special examiner of surveys, House Report No. 1186, 59th Cong., 1st Sess., p. 8, and the Field Notes and Plats of the Indian Territory to which he refers; id., 45 Cong.Rec. 6109.
3 Sayles' Early Laws of Texas, p. 505. The lines of these counties are given in 162 U. S. 162 U.S. 1, 162 U. S. 40, note 1, and their location is shown on the map at 162 U. S. 22.
20 Stat. 318, c. 97.
Sen.Ex.Doc. No. 70, 47th Cong., 1st Sess. Many years later, in 1906, the House Committee on the Judiciary again called attention to the fact that, up to the date of this report of the Secretary of the Interior, no part of the boundary "had ever been officially agreed upon or accepted by Texas or the United States, as contemplated in the Act" of 1858. House Report No. 1186, 59th Cong., 1st Sess., p. 3.
H.R. 1715, 47th Cong., 1st Sess. This bill was reported upon adversely by the House Judiciary Committee, which recommended the creation of a joint commission to settle the facts involved in the Greer County controversy. House Report No. 1282, 47th Cong., 1st Sess. This report appears in 162 U. S. 162 U.S. 1, 162 U. S. 69, note 1.
S. 954, 47th Cong., 1st Sess. This bill passed the Senate. 13 Cong.Rec. 3027.
9 Gammel's Laws of the State of Texas, p. 265.
23 Stat. 296, c. 47.
23 Stat. 843. The report of the United States commissioners appears in House Ex.Doc. No. 21, 50th Cong. 1st Sess.
26 Stat. 81, 92, c. 182, § 25.
26 Stat. 948, 971, c. 542.
10 Gammel's Laws of the State of Texas, 195.
His report appears in House Doc. No. 635, 57th Cong., 1st Sess., p. 31.
31 Stat. 731, c. 75.
House Doc. No. 33, 57th Cong., 2d Sess.; id., 45 Cong.Rec. 6105; field notes, House Doc. No. 375, 57th Cong., 2d Sess.
Texas General Laws (1st Call.Sess.) 1903, p. 12.
House Doc. No. 259, 59th Cong., 1st Sess., with Diagram; id., House Report No. 1186, 59th Cong., 1st Sess., and 45th Cong.Rec. 6108.
House Doc. No. 38, 58th Cong., 3d Sess.
Bill, H.R. 443, 59th Cong., 1st Sess.; House Joint Res. No. 66, 59th Cong., 1st Sess.; Bill, H.R. 15098, 59th Cong., 1st Sess.
House Report No. 1186, 59th Cong., 1st Sess.; House Report No. 1788, 59th Cong., 1st Sess.
House Doc. No. 54, 60th Cong., 1st Sess.
President's Proclamation, 35 Stat. 2160.
House Joint Res. No. 6, 61st Cong., 2d Sess.; House Report No. 1250, 61st Cong., 2d Sess.
Concurrent Resolution, 2d Called Sess., General Laws of Texas, 1919, p. 462.