Vectoral Federalism

• Citation: Vol. 20 No. 2
• Publication year: 2010

Vectoral Federalism

Scott Dodson

Introduction

To say that the Supreme Court's recent federalism jurisprudence has been erratic may be an understatement. [1] Take, for example, Eleventh Amendment state sovereign immunity, the right of a state to refuse to appear as a defendant in court.[2] The Court's pronouncements on state sovereign immunity have been overruled by constitutional amendment,[3] have been overruled by the Court itself,[4] have been gouged by exceptions that have not been fully justified, [5] and have taken on a scope that—even the Court itself admits—lacks foundation in the Constitution's text. [6] The result has been a protean doctrine whose boundaries are both uncertain and the subject of spirited debate among the members of the Court itself.[7] I join many others in attempting to anticipate the Court's next turn,[8] but the overwhelming conclusion is that this federalism doctrine is mightily confused. [9]

The Court's "state regulatory immunity" doctrine has experienced similar turbulence. In Maryland v. Wirtz,[10] the Court held that Congress could constitutionally regulate a state just as it could regulate a private individual.[11] The Court partially overruled that decision eight years later in National League of Cities v. Usery,[12] which held that Congress may not regulate states when its legislation would intrude upon core state governmental functions that are essential to a state's separate and independent existence.[13] However, the Court did not clearly identify the constitutional source of this limitation.[14] In City of Rome v. United States,[15] the Court carved out an exception to National League of Cities for legislation authorized by the Civil War Amendments.[16] Further, in Garcia v. San Antonio Metropolitan Transit Authority,[17] the Court reconsidered National League of Cities and overruled it as unworkable.[18] Garcia relegated protection of state sovereignty to the structural incorporation of state interests in the procedural mechanisms of the federal government.[19] Like the state sovereign immunity cases, the regulatory immunity cases have been mercurial.

Other federalism doctrines, though less pockmarked by reversals, are nonetheless notable for their controversial nature. In United States v. Lopez,[20] the Court found, for the first time since the New Deal, that Congress had exceeded its authority to enact legislation pursuant to the Commerce Clause.[21] The Court's recent anticommandeering doctrine, which prevents Congress from directing the states to administer or enforce federal law,[22] has provoked bitter dissents[23] and scholarly conflict. [24] To make matters more confusing, the Court first implied that the doctrine was grounded in the Tenth Amendment[25] but subsequently disavowed reliance on that source.[26] What is clear from these cases is that the Court is struggling (perhaps unsatisfactorily) to find a sound anchor for its federalism jurisprudence.[27]

The Court has admitted that "the task of ascertaining the constitutional line between federal and state power has given rise to many of the Court's most difficult and celebrated cases."[28] The only real guidance that the Court has offered in these federalism decisions is that "our federalism requires that Congress treat these states in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation."[29]

In this Article, I offer a new framework for understanding federalism. "Vectoral federalism" engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups.[30] Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government's power to regulate states and the states' concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps to rectify the Court's errors. Vectoral federalism has the potential to become an important tool for understanding American federalism and for developing a more unified and coherent federalism doctrine.

I. Normative Federalism

Because vectoral groupings are based in part on their normative commonalities, a brief overview of federalism values is helpful to the vectoral federalism discussion. The Constitution establishes a union of "dual sovereignty between the states and the Federal Government,"[31] with federal sovereignty superior to that of the states.[32] Federalism addresses how the states fit into their role as participatory but unequal sovereigns.

Why did the Framers devise such a system? What seems clear is that the sovereignty of the states has no independent or inherent value; [33] rather, the real value of federalism lies in enhancing democratic republicanism and reducing the risk of tyranny. [34] Thus, the normative justifications for dual sovereignty depend upon its enhancement of democracy and individual liberty.[35]

One justification for federalism is increased political diversity. Under a system that permits a diverse group of decentralized governments, citizens can develop (or move to) the government most amenable to their needs or beliefs. [36] Diversity also permits states to experiment with novel governmental matters.[37] A second justification is that states should have primary responsibility for governing matters in areas of historical and traditional state concern and also those in which they have developed a special expertise.[38] A third justification for federalism is the enhancement of responsive republicanism; the most effective and responsive government is one in which the representatives understand or at least have facile and ready access to information concerning local problems and issues.[39] Federalism also enhances citizen participation in the government by providing opportunities for aspiring local politicians to participate at the state level.[40] Such involvement stimulates democratic representation, improves the pool of interested representatives, and increases accountability.[41] Finally, the dispersion of power has the additional effect of providing a multi-layered government that increases the avenues of citizen appeal. [42]

Although these normative values provide support for various federalism doctrines,[43] they are sub-constitutional norms. The Constitution creates its own federalist structure, and it is in that document that federalism becomes an indelible rule of governance. Where the Constitution speaks to federalism, courts must enforce it. Where the Constitution does not, federalism norms find vindication only in judicially-devised rules of policy.

II. Vectoral Federalism

Although federalism is often discussed as a single, undifferentiated term, not all federalism is the same. The different federalism doctrines stem from different values and inexorably lead to different applications. The various federalism forms roughly represent two distinct concepts that lend themselves to vectoral metaphors. "Horizontal federalism" addresses the struggles to define the separate spheres of regulatory power of the states and the federal government. "Vertical federalism" addresses the federal government's power to regulate the states and the concomitant power of the states to resist this regulation. Although not always clearly demarcated, these federalism vectors illustrate a more coherent federalism doctrine.

A. Horizontal Federalism

Horizontal federalism addresses the states' role as participatory sovereigns and concerns the scope and the boundaries of the powers of the federal and of the state governments to regulate private parties. The concept is somewhat quantitative—how much regulatory power does each government have? The overriding principle of horizontal federalism is a limited national government. The paradigmatic question is this: "Which government—federal or state—has the authority to regulate private conduct in this way?" [44]

1. Constitutional Underpinnings

Although the virtues of horizontal federalism are found in its normative values, the authority to enforce it derives first and foremost from the Constitution. Although the Constitution does not mention "federalism," the text implicitly recognizes the continued existence and viability of states as governments. The Constitution provides for the physical territory of the states and gives the states a voice in determining their boundaries;[45] mandates state legislative,[46] executive,[47] and judicial[48] existence in a republican form of government;[49] contemplates affirmative obligations in the federal structure;[50] allows for state representation in the Article V amendment process;[51] and erects a limited independence from federal intrusion. [52]

That the states exist as governmental entities, however, does not inform the extent of their powers. The Constitution expressly, though narrowly, limits the power of the states. States may not enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts, grant titles of nobility, tax imports or exports, keep troops or ships of war, or engage in warfare.[53] States must also give full faith and credit to the laws and privileges and immunities of other states and extradite fugitives from the criminal process of other states.[54] When it speaks to the states, the Constitution explicitly and narrowly addresses their limits.

By contrast, when it speaks to the federal government, the Constitution explicitly and narrowly grants powers. Congress has the power to tax; to provide for the common defense and the general welfare of the United States; to borrow money; to regulate international, interstate, and Indian commerce; to...