Reflections on comity in the law of American federalism.

• Author: Seinfeld, Gil

ABSTRACT

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on the term to describe or explain duties that run from the states to the federal government. The goal of this Article is to document and account for this pattern in the law of federalism. I will explore a variety of explanations for the manner in which comity floats in and out of the caselaw, including the possibility that the terminological pattern tells us something fundamental about the meaning and limits of state sovereignty in the context of our federal system.

INTRODUCTION

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity is a regime of intergovernmental courtesy, and it is principally motivated by a desire to preserve and promote harmony among nations.

Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Thus, courts routinely describe duties that run from one state to another as exercises in comity, and they do the same with respect to duties that run from the federal government to the states; but they almost never rely on the term to describe duties that run from the states to the national government. This is so despite the fact that cases fitting into this last category establish rules of behavior that bear important hallmarks of comity-oriented legal regimes.

The principal goal of this Article is to document this pattern in the law of federalism and to consider what we might learn from it. The Article assesses why, in the context of our federal system, some instances of intergovernmental courtesy and deference are characterized as exercises in comity, while others are not. And it focuses, in particular, on what it is about the relationship between the states and the federal government that might make comity an unattractive framework for understanding the former's obligations to the latter.

The strong temptation is to assume that the explanation lies in the fact of federal supremacy. It is to attribute the absence of comity talk from cases involving states' duties to the federal government to the fact that the federal government is a superior sovereign while the states are subordinates, and to the notion that comity is--at least in the familiar, international law paradigm--a framework for the relationships among political equals. But things are not so simple as that, for the cases make clear that political equality is in fact not a prerequisite to the establishment of comity-based norms among sovereigns. (As we'll see, hordes of cases characterize obligations that run from the federal government to the states as exercises in comity.) (1) Political equality, it would seem, is a familiar feature of comity-oriented relationships, not a necessary one.

It is possible, though, that supremacy affects the availability of comity in a different way. Specifically, it may be the case that comity simply cannot "travel up"--that norms of comity can shape the relationships among political equals, and can guide the behavior of a superior sovereign in its dealings with a subordinate, but cannot set the terms of a subordinate's conduct toward a superior. If that's right, then the pattern that emerges from these bodies of caselaw is entirely predictable.

But if this is the best way to understand the caselaw, then there is more at stake in these decisions than appears at first glance. For the cases, when examined through this lens, become sources of insight into the basic mechanics of our federal system--into the precise nature of state sovereignty and federal supremacy. Even conceding--as any observer must--that the national government is the senior partner in our federal system, (2) it is hardly necessary that the balance between national supremacy and state sovereignty entail asymmetric access to comity. We might say, instead, that when the Framers "split the atom of sovereignty," (3) they created a scheme wherein comity remains available to the states in their dealings with the nation, the fact of federal supremacy notwithstanding. We might contend, in the same vein, that because the subordinate governments in the American federal system enjoy the status of bona fide sovereigns, duties that run from those subordinates to the supreme national government do not travel "up" in the relevant sense and so do not render comity inapposite. Yet the cases consistently eschew claims of this sort and refuse to rely on comity to explain states' duties to the federal government. (4) In so doing, they signal something about the robustness of state sovereignty in the context of the American federal system. And what they signal--that state sovereignty is not so potent as to enable states even to pretend at comity when dealing with the federal government--is difficult to square with a decades-long trend in the law of American federalism toward a more muscular conception of state sovereignty.

My analysis proceeds in three parts. Part I provides a brief description of how comity is conventionally understood and of the paradigm cases in which it takes hold. Part II surveys cases involving the three basic species of intergovernmental duty in our federal system--state-to-state, state-to-federal, and federal-to-state--and shows that the concept of comity features prominently in the interstate relations cases and the cases involving duties that run from the federal government to the states, but is virtually absent from cases involving duties that run from the states to the federal government.

Part III takes up the question of what we might learn from the terminological pattern in the caselaw. It explores three hypotheses. First, I consider the possibility that courts' abandonment of comity in the key subset of cases is simply an error (or, perhaps, a meaningless oversight). This account proceeds from the premise that, given states' status as bona fide sovereigns in our federal system, comity is a perfectly appropriate framework for understanding their obligations to the federal government. If judges typically fail to see the point, the argument goes, it is because they read too much into the fact of national supremacy and too little into the meaning of state sovereignty.

Second, I take up an argument that approaches the problem from the opposite direction. That is, instead of relying on assumptions about state sovereignty to shape our intuitions about where comity does and does not belong, I inquire whether courts' selective reliance on comity in these decisions might teach us something fundamental about the nature of state sovereignty in the context of the American federal system. It is telling, I will argue, that judges apparently cannot bring themselves (or it simply does not occur to them) to characterize states' obligations to the federal government as exercises in comity. For this lends support to the intriguing notion that, notwithstanding the insistent claims in a battery of modern federalism decisions, judges generally understand states to enjoy something less than the full status and dignity typically associated with sovereignty.

Finally, I consider the possibility that federal courts' selective reliance on comity across these bodies of case law tells us more about the dynamics of membership and union than it does about state sovereignty or national supremacy. Here I focus on the fact that, in the ordinary case, comity helps to guide the interactions among wholly distinct nations. If comity does not accurately describe the nature of states' obligations to the federal government, perhaps it's because states lack the political separateness from the nation that is necessary to enable comity. (5) Seen in this light, the cases explored here signal something important about the extent to which individual states and the nation are bound up with one another under our constitutional system.

1. AN INTRODUCTORY NOTE ABOUT COMITY

   Before delving into the caselaw, a preliminary word about comity is in order. The term "comity," as noted already, describes a nebulous set of norms familiar from the law of international relations. (6) In the main, these norms relate to the respect a government institution (often a court) affords to the laws, judgments, and interests of other nations. One widely quoted Supreme Court decision defines comity as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." (7) Another explains that "[c]omity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states." (8) As the phrase "spirit of cooperation" suggests, the term is closely bound up with notions of voluntariness, reciprocity, and courtesy. Thus, courts and commentators often highlight the fact that a particular decision is governed by "mere" principles of comity, as opposed to being strictly compelled by domestic or international law. (9) And, in deciding whether to defer to foreign judgments, laws, or interests, courts often focus on whether the foreign nation in question would do the same in the...