AuthorDelaney, Erin F.

INTRODUCTION 618 I. SOLIDARITY STRUCTURES AND FEDERALISM VALUES 623 A. Structural Account of Solidarity 626 1. Federal Membership 626 2. Nested Citizenship 628 3. Solidarity Synergies and Vulnerabilities 630 B. Federalism Values and Solidarity Federalism 632 II. SOLIDARITY IN PRACTICE: LAW AND POLITICS IN THE UNITED STATES 635 A. Constitutional Doctrine 636 1. The Dormant Commerce Clause 637 2. Interstate Sovereign Immunity 644 B. Politics 650 III. SOLIDARITY IN THEORY: RETHINKING FEDERALISM(S) 655 A. Horizontal Federalism 655 B. Comparative Federal Solidarity 658 C. Vertical Federalism 661 D. Competitive Federalism 663 CONCLUSION: THE LIMITS OF SOLIDARITY 666 INTRODUCTION

During the unprecedented national COVID-19 crisis, states resorted to protectionism and "us versus them" thinking. For example, Florida's governor suggested only Floridians would he allowed to disembark from an infected cruise ship. (1) Other states restricted interstate travel by imposing quarantine orders or border stops for vehicles with out-of-state licenses. (2) Officials even cast other states and their residents as vectors of disease. (3) The pandemic also led to hoarding behavior of all kinds--from essential medical equipment to bar-exam seats. (4) In short, states responded to the pandemic in ways that seemed to undermine the federal union.

If such actions were taken by a country against citizens of other countries, we might morally condemn them. But when, in a federation, states direct such actions to residents of fellow states, they may trigger legal consequences for states. (5) Understanding why states in a federation may not do to one another what independent countries do implicates principles that go to the very core of federalism. Despite its immensity, however, federalism scholarship in the United States does not shed much light on our COVID-19 example. This is for two reasons. First, conventional federalism studies focus disproportionately on the vertical relationship between the states and federal government, typically neglecting the horizontal relationships among the states or among the states and citizens of other states. (6) Second, the study of federalism--especially U.S. federalism--is preoccupied with state autonomy, rather than with duties states owe each other. (7)

Our COVID-19 example does not, however, fit neatly into a vertical or autonomy analysis. Although the autonomy-federalism account is helpful--it explains why states would see themselves as competitors over scarce resources and as special guardians over their own citizens' welfare--it does not explain our intuition that the states' offenses are not merely of moral, but also of legal, even constitutional, significance. To explain that, we must broaden our focus.

This Article draws on two trends in legal scholarship. One is a nascent literature on horizontal federalism that offers a framework for thinking about interstate dispute resolution. (8) The other is a discussion of "federal solidarity" in comparative and theoretical work, (9) that stretches us to think beyond the state autonomy paradigm. The principal insight of the federal solidarity literature is that, in addition to possessing entitlements to act autonomously, the federal government and the states also have obligations to each other, (10) and those obligations arise out of the shared goal to preserve and enhance the benefits of federal union. (11) Such obligations are said to include duties to work toward the common good, duties not to harm, and duties of good faith, reciprocity, cooperation, and trust.

Marrying these two literatures--on horizontal federalism and federal solidarity--allows us to understand that solidarity duties exist not only vertically, but also horizontally between and among states and between states and residents of other states. We use the term "solidarity federalism" to refer to the ways that federal solidarity in both its vertical and horizontal dimensions is promoted and enforced within a federation, including through federal judicial review and federal politics.

In Part I, we discuss the relationship between solidarity and autonomy, and we explain how solidarity values arise from constitutional structures of federation. (12) To do so, we analyze the characteristic structures of federal solidarity, namely, state membership in the federation and nested federal-state citizenship. Analogizing federal membership to a long-term relational contract, (13) we explain that states in a federation have obligations that run to other states. We use nested citizenship to derive obligations that run from states to residents of other states. These obligations include duties not to harm other states and their residents. These duties, in turn, give rise to federal solidarity's characteristic features, which include cooperation, trust, mutual aid, and nondiscrimination. Part I concludes by observing that autonomy and solidarity together generate the traditional "values" of federalism--including accountability, accommodation of individual choice, efficiency, individual liberty, and voter satisfaction. (14)

Part II identifies solidarity federalism in both U.S. constitutional doctrine and U.S. politics. The main argument of Part II is that, rather than mediating interstate conflicts merely to facilitate state autonomy, the Supreme Court actively enforces affirmative interstate solidarity duties in decisions that identify federal solidarity as an implicit constitutional value. (15) Using examples from Dormant Commerce Clause and interstate sovereign immunity caselaw, we show that understanding federal solidarity can demystify constitutional doctrine.

Part III considers the implications of solidarity federalism for the study of federalism. Specifically, we show how solidarity federalism adds nuance to preexisting federalism theories, such as competitive federalism, as well as improves our understandings of both horizontal and vertical federalism. Finally, we conclude by discussing constraints on federal solidarity and noting the challenges to federal solidarity that arise in conditions of deep social and political divisions.

In acknowledging federal solidarity, a clear implication emerges: A particular state's self-interest can no longer be said to stop at its own borders. Rather, solidarity expands our understanding of the very notion of state self-interest to include at least some regard for the rest of the union. Although we do not advocate for (or claim to know) the optimal amount of solidarity for our federation, the challenges of COVID-19 suggest that, at least sometimes, solidarity must be enforced, whether by courts or politics.

Unlike in other federations, our public discourse rarely refers to solidarity. But as Justice Cardozo's famous admonishment suggests, "The Constitution was framed... upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division." (16) Autonomy alone cannot sustain a federation. And despite our lack of solidarity discourse, our federalism encompasses solidarity values, and we should acknowledge and assess the ways that both solidarity and autonomy support our federation. Recognizing solidarity federalism and acknowledging the essential--indeed constitutive--role it plays in our federation means that, when conflicts arise, autonomy values do not necessarily trump solidarity values, and prioritizing solidarity values is not anathema to our constitutional system.


    This Part provides an affirmative case for federal solidarity by identifying the constitutional structures that give rise to federal solidarity. Before providing our structural account, however, we spend a moment on the term "solidarity."

    The concept that we label "solidarity" goes by different terms in theory and doctrine abroad, including "loyalty," "fidelity," and "cooperation." (17) We use "solidarity" for several reasons. First, solidarity is the dominant terminology, and using it will allow us to connect our arguments to the global study of federalism. Although we are aware that the term "solidarity" tends to evoke cither interpersonal relationships and feelings or group identification through shared norms and social bonds, (18) neither we, nor other federal theorists, use solidarity in the sense of feelings. Federal solidarity instead refers to the idea that federal partners have a "legally binding duty... to collaborate... with each other for the common good of the federation." (19) Second, the term "solidarity" is more capacious than terms that have been used in some countries, such as "fidelity" or "cooperation," because "solidarity" also encompasses duties to redistribute, duties not to harm, and duties not to discriminate. As we will explain, these additional duties are integral to federation. (20)

    Returning to constitutional structure, we observe that scholars have identified certain constitutional structures of state autonomy, including state equality, enumeration of powers, the reservation to states of powers not delegated to the federal government, and, of course, the very existence of states qua states within a constitution itself. (21) State entitlements arise from these structures, such as entitlements to territorial integrity and independent policymaking powers. Constitutional autonomy structures, as well as the state entitlements they generate, have been understood to produce and protect federalism's characteristic features, including competition, diversity, experimentation, and pluralism.

    Similarly, we identify' two main types of structures that generate and protect federal solidarity obligations: membership in the federal union and nested federal-state citizenship. Whereas federal membership largely creates intergovernmental obligations, obligations arising from nested citizenship run from states to citizens. We discuss...

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