Jessica Bulman-Pozen & Heather Gerken (Yale) have posted Uncooperative Federalism on SSRN. Here is the abstract:
his essay addresses a gap in the federalism literature. Scholars have offered two distinct visions of federal-state relations. The first 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 in most areas states serve not as autonomous outsiders, but supportive insiders, servants and allies carrying out federal policy. The puzzle 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. Legal scholars have thus neglected the possibilities associated with what we call "uncooperative federalism." We see examples of uncooperative federalism scattered throughout "our federalism," instances where states use regulatory power conferred by the federal government to resist federal policy.
Most legal scholars are likely to be aware of this type of resistance, or at least unsurprised by its existence. That makes the scholarly neglect of this topic all the more surprising. While uncooperative federalism occurs often in our federal system, we don't 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. This essay provides an initial account of this undertheorized aspect of our federalism. It compares the distinct powers that the state wields as sovereign and servant. It sketches a normative argument for why uncooperative federalism might be useful in a well-functioning federal system. And it explores what a strong commitment to uncooperative federalism would mean for the doctrine on commandeering and preemption, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in harder forms of dissent.
And from the text:
In order to ground our analysis a bit, here we offer a thought experiment: if you were strongly committed to uncooperative federalism—believing that it outweighed the many other values that courts have invoked in resolving federalism disputes and that it did in fact offer the authoritative guide to “our federalism”—what would that mean in terms of doctrine?126 We argue below that a strong commitment to uncooperative federalism should lead a judge to conclude that the Court has two central doctrines of federalism backwards. Rather than proscribe commandeering and expansively construe preemption as it does now, the Court should allow commandeering and cabin preemption doctrine. By fostering integration and overlap in regulatory spheres, this doctrinal 180 would facilitate state dissent while pushing Congress to engage with state challengers.
* * *
A strong proponent of uncooperative federalism would embrace commandeering not because it increases national power or furthers federal-state cooperation, as most proponents of commandeering would have it, but because it facilitates challenges to federal policy. That’s because commandeering would lead to greater federal-state integration than exists now, embedding state officials in more units of the Fourth Branch, even when they disagreed with national policy. The ways in which states challenged federal environmental and welfare policy, as we discussed in Part I, are instructive even though these challenges did not involve commandeering (the Clean Air Act is a conditional preemption statute, while AFDC involved conditional spending). These examples suggest that commandeering would create more channels for the peculiar form of dissent that we’ve termed uncooperative federalism—dissent that takes place within the interstices of the federal system, vests state officials with greater agenda-setting power, and allows state bureaucrats to serve as “connected critics” within the federal system.
Indeed there is reason to think that commandeering, were it permitted, would lead to more engaged and intense forms of contestation than conditional preemption and conditional spending. These gentler efforts to rope states into the federal scheme allow states to opt out without raising any objection to the merits of federal policy; they can simply choose not to implement a federal program or to turn down federal funds. By contrast, a state that is commandeered must at a minimum decide how to implement federal policy and whether to deviate from or push back against Congress’ instructions.
Commandeering may push states towards harder forms of dissent, perhaps even civil disobedience.134 State resolutions responding to the Patriot Act (which effectively commandeers state resources by requiring state cooperation in intelligence and enforcement) offer a good example. As we discussed above, these resolutions challenge the Act by refusing state participation in enforcing provisions that state officials believe to violate the Constitution. Precisely because the states are implicated in the federal program, they are driven to make claims against federal policy on its merits rather than simply demand an exemption in their borders.
In this way, commandeering may even bolster the expressive power of states to contest federal policy.
Highly recommended!
