Uncooperative federalism.

• Author: Bulman-Pozen, Jessica

ESSAY CONTENTS INTRODUCTION I. UNCOOPERATIVE FEDERALISM IN THEORY AND PRACTICE A. Uncooperative Federalism in Theory: The Power of the Servant Dependence 2. Integration 3. Two Masters B. Uncooperative Federalism in Practice 1. Licensed Dissent: Welfare to Work 2. Taking Advantage of a Regulatory Gap: The Clean Air Act 3. Civil Disobedience: The Patriot Act II. IS UNCOOPERATIVE FEDERALISM VALUABLE? A. Uncooperative Federalism Versus the Autonomy Model 1. The Administrative Safeguards of Federalism 2. Agenda Setting 3. Dissent as an Act of Affiliation 4. Accountability B. Uncooperative Federalism Versus the Political Safeguards of Federalism 1. The Ex Post Safeguards of Federalism 2. Dissenting by Deciding III. DOCTRINAL IMPLICATIONS A. Commandeering B. Preemption CONCLUSION INTRODUCTION

Federalism scholarship offers two distinct visions of federal-state relations. The dominant vision depicts states as rivals and challengers to the federal government--a role they play by virtue of being autonomous policymakers outside the federal system. A second vision is offered by scholars of cooperative federalism, who argue that the dominant vision ignores the substantial portions of "Our Federalism," (1) in which states are not autonomous policymakers but instead carry out federal programs. As the moniker suggests, scholars of cooperative federalism argue that states should serve not as autonomous outsiders, but supportive insiders-servants and allies to the federal government.

What is puzzling is that we rarely try to connect these competing visions and imagine how the state's status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger. It is as if the state's identity changes as it crosses from the territory of dual federalism to the terrain of joint regulation. When states are challenging federal power, we tend to depict them as autonomous sovereigns. When states are implementing federal mandates, we generally think they should act as cooperative servants. We have not, in short, fully explored the possibilities associated with what we call uncooperative federalism. (2)

Uncooperative federalism occurs when states carrying out the Patriot Act refuse to enforce the portions they deem unconstitutional, when states implementing federal environmental law use that power to push federal authorities to take a new position, or when states relying on federal funds create welfare programs that erode the foundations of the very policies they are being asked to carry out. We see examples of uncooperative federalism in such varied arenas as immigration, healthcare, and education. In each of these fields, states use regulatory power conferred by the federal government to tweak, challenge, and even dissent from federal law.

Most legal scholars are likely to be aware of this type of resistance, or at least unsurprised that it might occur. That makes the scholarly neglect of this topic all the more surprising. While uncooperative federalism occurs regularly within our federal system, we do not have a vocabulary for describing it, let alone a fully developed account of why it happens, what it means, and what implications it holds for the doctrinal debates in which federalism scholars routinely engage. (3)

The goal of this Essay is to provide an initial account of this undertheorized aspect of our federalism and to begin sketching a general theory about the relationship between the power of the sovereign and the power of the servant. We hope to convince readers that a sensible account of federalism ought to recognize that uncooperative federalism occurs in practice and to acknowledge that there are values associated with the phenomenon. In the process, we offer a new read on two of the most controversial strands of federalism doctrine--commandeering and preemption. While the Supreme Court has condemned commandeering and favored preemption, a strong commitment to the idea of uncooperative federalism would suggest that the Court has it wrong on both counts. Our doctrinal analysis also leads to a counterintuitive conclusion: while proponents of state resistance generally insist that autonomy is necessary for states to challenge the federal government, it may be that forcing states into the role of federal servants ultimately does more to foster state-centered dissent. To borrow from Albert Hirschman, uncooperative federalism values a state's voice options over its exit options. (4)

Two brief caveats are in order. First, the goal of this Essay is not to offer a single, authoritative account of federalism or to displace existing theories about federalism's purpose. We simply wish to foreground a set of underappreciated dynamics in our current practice and to describe the intriguing possibilities associated with state contestation when it takes place outside the terrain where most imagine it occurs. We thus do not take on every claim about the value of autonomy in a federal scheme, but insist only that autonomy is not a necessary precondition for effective state contestation. Second, because most of the potential costs associated with state contestation have already been identified by scholars with a nationalist bent, we focus on the affirmative case for the role that uncooperative federalism can play in a well-functioning federal system. By this focus we do not mean to suggest that contestation will always be desirable; we merely argue that the benefits of uncooperative federalism have not been fully appreciated within the literature.

Part I explains why uncooperative federalism should occur in theory and describes what it looks like in practice. We analyze the three main sources of the servant's power and offer several case studies of uncooperative federalism in action. Having described the phenomenon and its root causes, we argue in Part II that uncooperative federalism offers a number of advantages over other forms of state-centered dissent. It promotes contestation and debate in the vast swaths of state-federal interactions now delineated as "cooperative federalism." It supplements the well-recognized political safeguards deployed before a statute or regulatory scheme is enacted with a set of ex post strategies for challenging federal policy. It helps would-be dissenters set the agenda, challenge federal policy from the inside, and build a real-world example of their views within the interstices of the federal scheme. Uncooperative federalism may even help make state and federal officials more accountable to their constituents. Part III shows that, if we value uncooperative federalism, we ought to think differently about bread-and-butter doctrinal issues like commandeering and preemption. A strong commitment to uncooperative federalism would push courts to favor commandeering and to rein in preemption--precisely the opposite of the Supreme Court's current stance. The Essay concludes by discussing some of the broader implications of our project.

1. UNCOOPERATIVE FEDERALISM IN THEORY AND PRACTICE

   As with many vaguely defined constitutional mandates, we need a set of mediating principles to translate "Our Federalism" into manageable legal doctrine, (5) Without an understanding of what purposes federalism serves, we cannot resolve disputes about how federalism should work. In describing federalism's intermediary principles, scholars toggle between two quite different visions of the state. Most theories of federalism rest upon an autonomy model that depicts states as sovereign policymaking enclaves, able to regulate separate and apart from federal interference. State autonomy helps create laboratories of democracy, (6) diffuse power, (7) foster choice, (8) safeguard individual rights, (9) and promote vibrant participatory opportunities for citizens. (10) So central is the notion of autonomy to most theories of federalism that Adam Cox has suggested that the mere perception that states are not autonomous might undermine their power. (11)

   The emphasis on autonomy is particularly pronounced in a line of scholarship depicting the states as dissenters. Academics like Ernest Young and Matthew Porterfield argue that states represent an important locus for dissent and suggest that federalism doctrine should be construed to protect states' role as dissenters, much as the First Amendment protects individuals who speak against their government. (12) Indeed, several scholars have proposed that states should receive something akin to a First Amendment right to use their lawmaking powers to challenge national policies. (13) In a sense, this account simply extends the zone of the state's autonomy outside its usual bounds.

   Scholars of cooperative federalism have advanced the main competitor to the autonomy model. (14) Given the array of regulatory programs "that invite state agencies to implement federal law," cooperative federalism scholars argue that it is a mistake to "view[] each jurisdiction as a separate entity that regulates in its own distinct sphere of authority." (15) These scholars emphasize integration, not autonomy; their version of federalism is aptly nicknamed "marble cake federalism" (in contrast to dual federalism's "layer cake" of clearly delineated state and federal realms of power). And they generally argue that states should serve not as rivals or challengers to federal authority, but as faithful agents implementing federal programs. Indeed, while these scholars are well aware that servant states can resist federal mandates, they tend to regard this phenomenon as a principal-agent problem to be avoided, not a productive source of friction in our federalist system. (16)

   If we lay these distinct understandings of federal-state relations side by side, an interesting puzzle emerges. Those who focus on the states' role in challenging federal policies rely heavily on the autonomy model. (17) They not only emphasize, but often seek to expand, the terrain in which the state wields the power...