Academic journal article William and Mary Law Review

Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards

Academic journal article William and Mary Law Review

Dual Constitutions and Constitutional Duels: Separation of Powers and State Implementation of Federally Inspired Regulatory Programs and Standards

Article excerpt


Frequently, state-wide executive agencies and localities attempt to implement federally inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made.

This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally inspired programs. To the extent the predominant ways of resolving the tension come from federal courts, state constitutionalism is challenged to produce its own account of its relevance in an era of federal programs. After surveying and critiquing the interpretative practices of state courts in dealing with these conflicting constitutional norms, the Article presents an institutional design account of state allocation of powers, which might better explain why states routinely suspend constitutional restrictions on delegation in the context of state implementation or federally inspired programs. The Article questions whether constitutional restrictions on legislative delegation have any normative basis in the context of state implementation of federally inspired programs, but also argues that it is important for state courts to answer this question as a matter of state constitutional interpretation--and not by ceding turf to federal courts under the Supremacy Clause or other federally imposed judicial interpretations.


With the post-New Deal growth of federal power, states are increasingly called on to implement federal programs. In a variety of regulatory contexts--ranging from health, safety and environmental regulation to network infrastructure and transportation--Congress and federal regulators routinely look to state and local governments to implement federal programs and regulatory goals. Often the federal government offers a "carrot" for state or local compliance, providing funding for programs such as welfare, Medicaid, or public school standards and testing. States frequently take the silver, voluntarily acquiescing to federal programs or regulatory standards that bump up against state constitutional restrictions. (1)

Even outside of the context in which a state stands to benefit financially from adopting a federal program or standard--for example, where some state or local official voluntarily endorses it--state constitutions frequently present barriers to the implementation of federal goals or the adoption of federal standards. State decisions to participate in a federal program or to adopt a federal standard may involve constitutional rights, (2) but sometimes they will conflict directly with the allocation of powers between the branches or levels of government articulated in a state constitution as well. The prototypical scenario discussed in this Article is common under federal and state statutes. Often states are asked to adopt programs that rely on, implement, or incorporate federal statutes and regulations; frequently they choose to adopt these programs. For example, a state legislature's statute regulating water pollutants might rely on definitions or standards adopted by the U.S. Environmental Protection Agency (EPA), or may even explicitly incorporate EPA regulations or guidance documents into state law.

Dual constitutions--federal and state--produce the prospect of dueling substantive and procedural constitutional norms between the federal and state levels of government. Cooperative federalism programs, in which the federal government relies on states or localities to adopt and/or to implement a federal goal, might run into barriers under state constitutions. …

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