Our (National) Federalism

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INTRODUCTION

There is a simultaneity of nationalist and state-centered impulses in almost every aspect of modern American federal law. But we do not have the theories to recognize it, or the legal doctrines to effectuate it. Federal law is now predominantly statutory law, and the reach of federal statutes into areas of historic state control continues to expand. But this "federal" law has an unmistakably state-centered component: With almost every national statutory step, Congress gives states new governing opportunities or incorporates aspects of state law-displacing state authority with one hand and giving it back with the other.

Federalists should pay attention: In the post-New Deal Era, this role for the states within federal legislation is a primary vehicle through which states have influence on major questions of policy, and through which state sovereign powers retain their relevance, albeit in ways different from those contemplated by the traditional account. Current doctrine is not at all keyed in to the ways in which a very great deal of state sovereign power--including state lawmaking and state-court jurisdiction--is exercised as part of federal statutory implementation, and so current doctrine does nothing to protect or effectuate that state authority. It is not that states do not retain relevance at the local level. But when it comes to most major policy questions, Our Nationalism has become a critical generator of Our Federalism. (1)

Federalism also is a key ingredient in Our Nationalism. The modern federal regulatory apparatus is increasingly attendant to questions of the state-federal allocation of responsibility, and also is dependent on state actors, in ways both practical and political. State implementation of federal statutory law and the incorporation of state law within federal statutory schemes are allocation-of-power strategies used by Congress to make federal legislation more effective; but they also restrain the breadth of national control and make legislation more politically palatable. There is something different about national statutory schemes when states have the primary policy and lawmaking roles--something this Essay argues is often, indeed, "federalism."

This push-pull of nation and state-both from inside the landscape of federal statutes-is more than just an interesting theoretical observation. It is a "law" problem. When it comes to legal doctrines to deal with this new world of statutory federalism, ours is a sorry state of affairs. Modern state-federal relationships have given rise to many new and difficult legal questions--ranging from those of state-versus-federal-court jurisdiction to matters of administrative deference, statutory enforcement, and standards of review. Such questions have split the lower courts, have yet to be resolved by the U.S. Supreme Court, and are affecting how major federal laws are being carried out across the country. Half the time, the courts do not even recognize these questions as federalism questions, even though they unquestionably concern the discretion, influence, and sovereignty of states in a national legal landscape. Robert Schapiro wrote a decade ago that modern federalism lacks "rules of engagement." (2) We are still muddling through.

This essay makes two principal claims, both intended to provoke discussion. The first is about modern federalism's primary domain and its source: federalism now comes from federal statutes. It is "National Federalism"--statutory federalism, or "intrastatutory" federalism, as I have called it in the past. (3) One reason for the lack of developed doctrines is the resistance to recognizing that this is where modern federalism comes from and where its primary battlegrounds he. Courts and scholars for decades have acknowledged the prevalence of cooperative federalism," which of course is often generated by overarching federal statutory schemes. (4) Even some traditional federalists have come to recognize the state power to be gained from this interactive, rather than "separate spheres," model of state-federal relations. …