Our Federalism(s)

By Gerken, Heather K. | William and Mary Law Review, April 2012 | Go to article overview

Our Federalism(s)


Gerken, Heather K., William and Mary Law Review


TABLE OF CONTENTS

INTRODUCTION
 I. MAPPING FEDERALISM DEBATES
    A. Sovereignty, Process Federalism, and the
       Exit Option
    B. Cooperative Federalism and the
       Power of the Servant
    C. Federalism(s) in Practice
II. WHY PLURALISM MATTERS
    A. Forms of State Power: Substitutes or
       Complements?
    B. The Neglect of Cooperative and Uncooperative
       Federalism
       1. Context, Not Contests
CONCLUSION

INTRODUCTION

Like all academics, federalism scholars typically divide into camps. Some favor state sovereignty; others favor state autonomy. Some insist that states require formal, judicially enforceable protections against federal intrusion; others favor the informal protections afforded by the political process. Some favor cooperative federalism; others are not even sure that cooperative regimes can properly be called federalism. Scholars even divide as to the source of state power in its ongoing competition with the national government. Some imagine states occupying a separate sphere from the federal government. (1) Others assume that some level of state-federal integration is not just inevitable but healthy. Still others imagine that it is useful to have states serve as fully integrated administrative units within the federal system.

When scholars write about these debates, they often write as if we must choose between these different accounts of federalism--that we need one theory to rule them all (with apologies to Tolkien). It is not surprising that federalism scholarship usually rests on this assumption. Academics mostly write about the case law. And in a given case, one usually does have to make a choice between one theory or another. (2)

In the legislative and administrative arenas, however, our choices are far more varied. We need not hew exclusively to one vision of federalism. We can choose all of them at once. And we do. Every flavor of federalism can be found somewhere in our system. Institutional structures and interactions vary dramatically from domain to domain, program to program. Substantial variegation can be found within the same statutory scheme. (3) Indeed, even in the judicial context, we can--and do--choose more than one vision of federalism. "Our Federalism," (4) in short, contains multitudes. It would be more accurate to call it "Our Federalism(s)." (5)

It would be useful if federalism debates were more attentive to the fact that there are many federalisms, not one. In this Article, I identify three main reasons why federalism debates would improve if we paid more attention to federalism's many facets. First, federalism debates have an all-or-nothing quality to them, as if different accounts of federalism are mutually exclusive. Arguments typically rest on the assumption that different forms of state power are substitutes for one another. As a result, scholars have largely neglected the possibility that these forms of state power can also be complements. Sovereignty can be leveraged to give states more power within the national policy-making process. States' status as administrative insiders can help them preserve their power outside of national policymaking. It would be useful if scholars were more attentive to the fact that the questions federalism raises need not involve an either/or answer. Often they will involve a both/and.

Second, if we paid more attention to the many forms state power can take, we would find there is a good deal more to say about federalism doctrine and theory. The dominance of the sovereignty and process federalism accounts--both of which endorse a markedly similar view of state power--has led constitutional theory to neglect the huge swaths of federalism in which the states and federal government regulate together, with the states carrying out national policy. At present, constitutional theory lacks the tools necessary to analyze these cooperative federal regimes. But although there is a great deal of room to write in these areas, scholars continue to rehearse the same, tired debates over sovereignty and process federalism that have dominated the field for decades.

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