Making federalism doctrine: fidelity, institutional competence, and compensating adjustments.

• Author: Young, Ernest A.

INTRODUCTION I. DOCTRINE, STRUCTURE, AND THE JUDICIAL ROLE A. The Problem of Doctrine B. Compensating Adjustments and the Judicial Role in Structural Cases 1. Our Adjustable Federalism 2. Incrementalism and Constraint II. FIDELITY AND THE DIRECTION OF DOCTRINAL ADJUSTMENT A. Fidelity and Its Limits 1. Text and History 2. Obligation and Interpretation B. The Case for Adjustment 1. The Constitution's Incompleteness on Federalism 2. Change and Adjustment 3. Compensating Adjustment in Practice C. Objections 1. The Indeterminate Object of Fidelity 2. Finding the Balance Point 3. Has History Moved On? III. THE INSTITUTIONAL AND FUNCTIONAL DETERMINANTS OF FEDERALISM DOCTRINE A. Institutional Choice 1. One Issue, Many Questions 2. The Obligation to Decide 3. The Ubiquity of Judicial Enforcement B. Interpretive Choice 1. Collaborative Enforcement and Institutional Self-Dealing 2. Judicial Decision Making and the Frankfurter Constraint 3. Judicial Competence and Compensating Adjustments C. Underlying Values D. Some Examples 1. Preemption 2. Necessary and Proper CONCLUSION INTRODUCTION

Our Constitution establishes a federal structure but says relatively little about what such a structure entails. Virtually every political actor in our system has had something to say about filling in the gaps in this structure: Presidents and Congresses have both extended and voluntarily limited their own power; state governments have protested national actions on some occasions and, on others, urged Congress to act; social movements outside the government have pressed for reform at all institutional levels. Throughout our history, the judiciary has operated alongside these other actors to help define and implement our federal balance. Because the text and history of the Constitution yield few clear answers to federalism questions, the courts have had to work through these issues primarily as a matter of doctrine--that is, judge-made rules that elaborate upon and implement the Constitution's requirements.

This judicial function has always been controversial. In the early nineteenth century, for example, South Carolina nullifiers rejected the Supreme Court's claim to authoritatively resolve federalism disputes and instead insisted on political settlement of such questions through negotiations between the national government and the states. (1) In our own era, prominent commentators and even some Supreme Court justices maintain that the Court should stay out of disputes about the boundary between state and national power, leaving that line to be drawn by the national political branches. (2) The issue has become particularly salient over the last decade, as the Rehnquist Court's "Federalist Revival" has reinvigorated the notion of judicially-enforced limits on national power after nearly a half-century of dormancy.

This Article undertakes to explore and defend the enterprise of making federalism doctrine. I make three distinct claims. The first is that fidelity to the Constitution requires us to have federalism doctrine. The Constitution is vague on the specific contours of our federalism, and there is considerable evidence that the Founders left many details to be worked out over time. But those uncertainties cannot mask the widely shared commitment at the Founding to some sort of balance between national and state authority. On any of the most plausible accounts of constitutional obligation--not just on an originalist account--that commitment commands our respect today. As Jenna Bednar and William Eskridge have written, "[c]onstitutional law must make some sense of federalism." (3)

My second claim is that courts legitimately can--and should--develop innovative doctrinal solutions to the problem of maintaining the federal balance, whether or not those doctrines can be grounded directly in the text and history of the Constitution. Much of the federalism debate has centered on textual and historical sources. (4) But it seems fair to say that although those sources of law have been highly relevant to the Court's enterprise, neither text nor history has dictated many of the resulting doctrines. Consider, for example, the rule that the federal government may not "commandeer" state legislatures or executive officers. (5) Nothing in the constitutional text mandates such a rule. (6) Although the relevant history supports the notion that the Framers intended the new national government to act directly on individuals rather than through state governmental institutions, that history is hardly so clear as to be dispositive. (7) The more persuasive justifications for this and other rules, in my view, rest on their functional roles in protecting state autonomy. (8) In any event, the important point is that the Court has been operating in a context where text and history suggest important directions but do not mandate particular doctrinal formulations. Instead, the Court has constructed doctrine to meet the needs of the federal system as it sees them. Federalism doctrine has been made, not found.

Many of the Rehnquist Court's critics, both on the bench and in the academy, have taken the failure of text and history to compel particular federalism doctrines as proof that the enterprise is illegitimate. (9) This is a curious reaction--although perhaps not a surprising one--given that many of the same people favor judicial creativity in other contexts. (10) My own view is that doctrinal creativity is essential if the Constitution's mandate of a federal balance is to be maintained in a world where many of the Founders' presuppositions about the structure of society and government have profoundly changed. Text and history tell us that our Constitution established a creative tension between national and state governments. I will argue, however, that those same sources can tell us relatively little about how that tension should be maintained in today's world. And although adaptation of the original structure to present circumstances is not exclusively, or even primarily, a task for courts, I contend that they must nonetheless play an important role.

The third claim is really a cluster of arguments about how courts should go about shaping federalism doctrine. My approach is influenced by the "institutional turn" in constitutional scholarship. This movement has insisted that "debates over legal interpretation cannot be sensibly resolved without attention to [the institutional] capacities" of the institutions doing the interpreting. (11) To some extent, this institutional turn occurred long ago with respect to federalism. At least since the New Deal, debate has focused not only on what the allocation of authority between the states and the nation should be, but also on institutional questions about the extent to which courts should participate in drawing the line. (12) Recent scholarship on comparative institutional choice does suggest ways to sharpen this inquiry, lending a bit more rigor to longstanding generalizations about the "political safeguards of federalism."

I want to resist, however, the notion that comparative institutional choice can resolve basic questions about whether courts should decide federalism cases at all. One of the distinctive characteristics of courts as institutions is that they lack certain kinds of control over their own agendas; they are not free, in other words, to decline to decide disputes otherwise within their jurisdiction simply because they think some other sort of institution might do the job better. Moreover, the sorts of factors that drive comparative institutional analysis may well play out quite differently in different sorts of federalism cases, so that the question of choice should be treated as multifarious rather than unitary. My claim, then, is that institutional analysis may be employed best at the stage of interpretive choice, that is, in shaping the particular doctrines that courts adopt in various different federalism contexts. The generic question, "Should courts decide federalism cases?" is one that courts cannot legitimately ask, and one that has no single answer.

Part I of this Article explores the use of judicial doctrine as a tool for resolving disputes about federalism. The basic point is that doctrine and the Constitution are not the same; hence, the use of doctrine requires justification beyond the traditional arguments about judicial authority to interpret the Constitution itself. I offer a rudimentary model of how courts may act to maintain the federal balance, first by identifying the direction from which the principal threat to that balance comes at any given point in our history, and second by formulating doctrines designed as compensating adjustments in the direction of equilibrium. This basic model frames much of the discussion that follows.

Part II argues that fidelity to the Constitution obliges courts to play this role of doctrinal innovation. I suggest, however, that although the constitutional text and history support that obligation, these sources generally do not go so far as to mandate particular sorts of federalism doctrines. This is true because the original Constitution left many of these matters open, and because certain approaches apparently mandated by the text or historical expectation have become obsolete over the course of our history. This Part thus lays out the case for a judicial role in making "compensating adjustments" to the federal balance through doctrinal innovation. I also take up some objections concerning the ability of courts deciding individual cases to discern the appropriate direction and magnitude of such adjustments.

Part III addresses the more difficult step, that is, the formation and content of doctrine. Here I confront the question of institutional choice, for the failure of text and history to determine the content of federalism doctrine suggests that more functional considerations should play a leading role. As I have already suggested...