Our (national) federalism.

AuthorGluck, Abbe R.
PositionFederalism as the New Nationalism

INTRODUCTION

There is a simultaneity of nationalist and state-centered impulses in almost every aspect of modern American federal law. But we do not have the theories to recognize it, or the legal doctrines to effectuate it. Federal law is now predominantly statutory law, and the reach of federal statutes into areas of historic state control continues to expand. But this "federal" law has an unmistakably state-centered component: With almost every national statutory step, Congress gives states new governing opportunities or incorporates aspects of state law-displacing state authority with one hand and giving it back with the other.

Federalists should pay attention: In the post-New Deal Era, this role for the states within federal legislation is a primary vehicle through which states have influence on major questions of policy, and through which state sovereign powers retain their relevance, albeit in ways different from those contemplated by the traditional account. Current doctrine is not at all keyed in to the ways in which a very great deal of state sovereign power--including state lawmaking and state-court jurisdiction--is exercised as part of federal statutory implementation, and so current doctrine does nothing to protect or effectuate that state authority. It is not that states do not retain relevance at the local level. But when it comes to most major policy questions, Our Nationalism has become a critical generator of Our Federalism. (1)

Federalism also is a key ingredient in Our Nationalism. The modern federal regulatory apparatus is increasingly attendant to questions of the state-federal allocation of responsibility, and also is dependent on state actors, in ways both practical and political. State implementation of federal statutory law and the incorporation of state law within federal statutory schemes are allocation-of-power strategies used by Congress to make federal legislation more effective; but they also restrain the breadth of national control and make legislation more politically palatable. There is something different about national statutory schemes when states have the primary policy and lawmaking roles--something this Essay argues is often, indeed, "federalism."

This push-pull of nation and state-both from inside the landscape of federal statutes-is more than just an interesting theoretical observation. It is a "law" problem. When it comes to legal doctrines to deal with this new world of statutory federalism, ours is a sorry state of affairs. Modern state-federal relationships have given rise to many new and difficult legal questions--ranging from those of state-versus-federal-court jurisdiction to matters of administrative deference, statutory enforcement, and standards of review. Such questions have split the lower courts, have yet to be resolved by the U.S. Supreme Court, and are affecting how major federal laws are being carried out across the country. Half the time, the courts do not even recognize these questions as federalism questions, even though they unquestionably concern the discretion, influence, and sovereignty of states in a national legal landscape. Robert Schapiro wrote a decade ago that modern federalism lacks "rules of engagement." (2) We are still muddling through.

This essay makes two principal claims, both intended to provoke discussion. The first is about modern federalism's primary domain and its source: federalism now comes from federal statutes. It is "National Federalism"--statutory federalism, or "intrastatutory" federalism, as I have called it in the past. (3) One reason for the lack of developed doctrines is the resistance to recognizing that this is where modern federalism comes from and where its primary battlegrounds he. Courts and scholars for decades have acknowledged the prevalence of cooperative federalism," which of course is often generated by overarching federal statutory schemes. (4) Even some traditional federalists have come to recognize the state power to be gained from this interactive, rather than "separate spheres," model of state-federal relations. (5) But even these expansive inquires have not grappled with the perhaps startling conclusion that follows from recognizing that states today may exert their greatest powers from within these federal statutory endeavors: namely, that this federalism's primary source is Congress.

Federalism today is something that mostly comes--and goes--at Congress's pleasure. It is a question, and feature, of federal statutory design. Distinct from the dominant conceptions of federalism and state power, this federalism is neither a constant presence nor an entitlement. It looks different and has various levels of strength across a wide continuum of statutory schemes. But it has important parallels to the federalism of the past, particularly judicial federalism. Just as federal judges once reached for the state common law to fill the interstices of federal law and to pi event the aggrandizement of lawmaking by the federal judiciary, (6) Congress today reaches for the states to restrain the breadth of federal law and to bring the states' expertise, variety, traditional authority, and sovereign lawmaking apparatus into federal statutes. Similarly parallel, the Erie questions of our time are not, as they once were, about the choice between state and federal common law but, rather, about how to choose between aspects of state and federal regulatory regimes. The critical choices between state and federal law today concern what rules of statutory interpretation, what standards of review, what administrative-law doctrines, and what other doctrines of statutory law federal courts should apply when they are interpreting state statutes, regardless of whether those state statutes stand alone or are the product of state efforts to implement federal legislation.

Is this federalism? Is this nationalism? It is both. The motivations are simultaneous and in tension. It is a nationalism that often lacks nationalism s defining theoretical feature--uniformity--and so presses us to ask what "Our Nationalism" is all about, a question that has received scant theoretical attention. It is also a nationalism that incorporates values, like experimentation and local variation, that are traditionally associated with federalism. We have seen this before, in a different form: Paul Mishkin famously described the "variousness" of judge-made federal law. (7) National Federalism recognizes that kind of state-oriented legal diversity in the federal statutes of the modern era.

Similarly, this federalism lacks the traditional appearances of federalism's defining feature: sovereignty. And it will discomfit some, because this federalism leaves state power to the grace of Congress. Indeed, in some ways, this is the ultimate instantiation of Herbert Wechsler's classic theory of the "political safeguards of federalism." (8) Wechsler argued that courts need not police federalism doctrine because the states are adequately represented in Congress. (9) National Federalism goes further, embracing Congress as federalism's primary source and viewing Congress as having as much, if not more, of a role to play in shaping federalism as do the courts.

But, to be clear, National Federalism is not a federalism shorn of state sovereignty. It is true that National Federalism emerges through congressional displacement of state law with a new, overarching federal statutory scheme. But this federalism depends on, and strengthens, the states' continuing sovereign status in important ways that have yet to be recognized. (10) When Congress calls on states to implement federal law, states act in their sovereign capacities to do so: They pass new state laws and regulations, create new state institutions, appoint state officials, disburse state funds, and hear cases in state courts--some cases, as I shall illustrate, that have been determined to be hearable only in state courts. It is true that this state action is not wholly separate from federal law; it is shaped by the federal statutes and states often need permission from the federal government to begin a course of federal statutory implementation. But that does not change the fact that, after such approval, the states' sovereign apparatus acts in ways that are often indistinguishable from the kind of autonomy we see in exclusively state-law domains.

My second claim is about National Federalism's lack of doctrine. This is a world of federalism-meets-statutory-law, but the doctrines of both federalism and federal legislation, as currently conceived, are unequipped for it. Non-dualist models of federalism have always suffered from a "wishy-washiness" problem when it comes to law--a problem that separate-spheres federalism, which does have some well-defined doctrines, like Commerce Clause doctrine' has not faced nearly to the same extent. (11) Part of the reason is that the vast expanse of writing about interactive federalism mostly has been devoted to functional inquiries about the merits of state-federal interconnectedness, or descriptive efforts illustrating those connections in particular subject-matter areas. (12) But alongside this important work, little attempt has been made to generate "law" effectuating the relationships being described. (13)

This is a problem that goes much deeper than the most recent example of it-the Supreme Court's disappointing declination, in the 2012 health reform case, to devise a real law of federal-state coercion for Spending Clause legislation. (14) It extends, for instance, into the important terrain of federal-state administrative relationships, where we have no doctrines that address whether state implementers of federal law receive any interpretive deference or any "process" when it comes to their interactions with federal agencies. It extends to judicial-power doctrines too, revealing gaping omissions in our laws of federal court jurisdiction and choice of law. One...

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