The jurisprudence of union.

• Author: Seinfeld, Gil
• Position: III. Understanding the Jurisprudence of Union through Conclusion, with footnotes, p. 1116-1143

3. UNDERSTANDING THE JURISPRUDENCE OF UNION

   The cases surveyed in Parts I and II demonstrate that the value of union does important, independent, work in shaping the law of vertical federalism. But it is safe to say--even with this account of the case law in place--that the nature and contours of the union-based constraints on state autonomy remain opaque. This is the case, no doubt, because union is typically part of the subtext, not the text, of the relevant Supreme Court decisions. And even when union does fight its way to the surface of the Court's opinions, discussion of that value tends to be obscured in a fog of supremacy-speak or is too brief to allow for consideration of its precise shape or application across different contexts. As a result, many challenging questions about the jurisprudence of union remain to be answered. This Part takes the first steps toward doing so.

   In Section III.A, I examine the nature of the union-based constraints on state autonomy. (152) I argue, in particular, that these constraints are largely concerned with the expressive significance of the law. They are focused, in other words, on what the laws in question say or what they mean, not on what they do. (153) This observation is important because it provides us with a clearer sense of what, exactly, these bodies of doctrine intend to police; this, in turn, should improve our capacity to identify other species of state action that might raise problems from the perspective of union.

   Next, in Section III.B, I take up the question of whether the jurisprudence of union represents a sound exercise in constitutional federalism. It is one thing to show that careful attention to the value of union can help us to understand what the Justices are up to in a series of cases, and it is quite another to show that the conception of union endorsed in those cases is compelling as a matter of constitutional law. Section III.B thus assesses the jurisprudence of union from the perspective of constitutional text and history, the functional values traditionally associated with our federalism, considerations of constitutional structure, and precedent.

   We will see that analysis under some of these interpretive modalities (text, history, functional concerns) proves inconclusive, while one (structural analysis) provides at least partial reason to think that the jurisprudence of union stands on firm constitutional ground. The last one (precedent) is something of a mixed bag. On the one hand, the bodies of case law we have examined already constitute the core of our precedential tradition relating to the union-based constraints on state autonomy. In a sense, then, the question of whether the jurisprudence of union is a good fit with established precedent has been asked and answered. But the precedential story is complicated by the Supreme Court's much debated decisions in New York v. United States (154) and Printz v. United States, (155) As we will see, those cases rest on a conception of union that is vastly different from the one we have encountered thus far.

   I conclude my analysis in Section III.C with some speculative thoughts as to how the jurisprudence of union might operate in contexts not yet addressed by the courts. As I attempt, in the discussion that follows, to deepen our understanding of the union-based constraints on state autonomy, I will focus once again (especially in Section III.B) on the valid excuse cases and on the particular conception of union they (implicitly) develop and apply. I do this, in part, because those cases have received the most sustained treatment in my analysis to this point and because the relevant body of Supreme Court decisions is relatively large and therefore provides the most raw material to work with. Moreover, those decisions come with a particularly rich body of scholarly commentary in tow. This commentary sheds light on how this fragment of the jurisprudence of union may fit into our federalism more generally, and so it provides a useful starting point for analysis (and, sometimes, a foil). As I have emphasized, however, the valid excuse cases represent but one variation on a coherent theme that drives a wide range of Supreme Court decisions. Thus, even though I focus my attention here on a particular set of union-oriented decisions, the analysis that follows applies to the jurisprudence of union as a whole. (156)

   1. Union and Vertical Federalism: Understanding the Constraints

      1. Union and Expressivism

         The union-based constraints on state autonomy are largely concerned with the expressive significance of the law. Expressive theories of U.S. constitutional law are rooted in the notion that "[p]ublic policies can violate the Constitution not only because they bring about concrete costs but because the meaning they convey expresses inappropriate respect for relevant constitutional norms." (157) What matters, for purposes of these theories, are not the immediate, tangible consequences of government action, but "the ideas or attitudes expressed through [that] action." (158) We have seen already that the direct material consequences of at least some of the laws at issue in the Court's union-oriented decisions are uncertain. (159) And that alone provides cause to wonder whether those decisions are motivated by expressivist considerations. What's more, although the relevant cases engage the constitutional interest in union only fleetingly, many of the passages from the case law that do refer (or, at least, allude) to this interest are most easily understood in expressivist terms.

         Consider, for example, the Court's insistence, in Testa v. Katt, that the Rhode Island statute under review "flies in the face of the fact that the States of the Union constitute a nation;" (160) or take the Court's admonition in Haywood v. Drown that "a State cannot employ a jurisdictional rule 'to dissociate [itself] from federal law.'" (161) If we presume that the doctrine of valid excuse is concerned only with the direct material consequences of state jurisdictional law, and not with the ideas or attitudes such law expresses, then it becomes difficult to know what to make of these passages. (What ill effects follow from a state thumbing its nose at the fact of our nationhood? And what immediate, tangible harms result from a state's dissociation from federal law?) If, however, we proceed from the premise that it is constitutionally problematic for a state to use its jurisdictional law to reject the norms endorsed by our national political community, and that it is problematic because doing so emphasizes separation between nation and state and thereby expresses the wrong view of our union, then the concerns raised by the Court in these passages become fully intelligible. For to say that a state law flies in the face of our status as a nation, or dissociates the state from federal law, is to say that the law in question expresses and emphasizes separation from, and not kinship with, the national political community.

         Consider also, in this vein, the Second Employers' Court's oft-quoted claim that the policy embodied in federal law "is as much the policy of Connecticut as if [it] had emanated from its own legislature, and should be respected accordingly in the courts of the state." (162) To begin with, the command for "respect" sounds in the register of expression; it is a directive that states adopt a particular attitude toward federal law and the federal government. Without the expressivist overlay, moreover, we are left to wonder why Connecticut must treat federal law as if it emanated from its own legislature. Neither the passage itself nor the surrounding discussion from Second Employers' supplies an answer. Here too, however, if we presume that states cannot use their jurisdictional law to express separation from federal law and policy, then the requirement that states respect federal law as they do their own explains itself.

         An expressivist understanding of this body of law also helps to explain the Court's fixation, from the earliest stages of the doctrine's development, on the question of whether state jurisdictional rules discriminate against federal causes of action. (163) State discrimination against federal claims is a sharp, particularly transparent, way of expressing separation from our national political community. When a federal cause of action is dismissed pursuant to a discriminatory jurisdictional scheme, the state bluntly proclaims the cause in question to be "not its own" (and disfavored for that reason alone). If we presume that this body of doctrine is centrally concerned with the expressive significance of the laws at issue, then it is hardly surprising that the Court was quick to flag as constitutionally problematic this rather stark means of expressing a state's separateness from our national political community.

      2. Two Approaches Toward Union and Expressivism

         Even if one is persuaded by the claim that the jurisprudence of union is motivated by expressivist considerations, the question remains why we ought to care about laws that send the wrong message about our union. What, exactly, is so bad about laws of this sort, and what reason is there to think that our Constitution takes a position on the question? (164) The cases, unfortunately, provide no answers. This is one of the significant casualties of the Court's consistent failure to explore the interest in union in any detail--it leaves us in the dark as to why this particular constitutional value is safeguarded in this particular way. Perhaps the best way to think about the problem, then, is to examine the jurisprudence of union in light of the analytic frameworks that have been developed to explain expressivist theories in other contexts. I have in mind here the two broad categories into which commentators tend to divide expressivist theories of constitutional law--consequentialist and non-consequentialist. In the subsections that follow, I...