Academic journal article Stanford Law Review

Preemption and Commandeering without Congress

Academic journal article Stanford Law Review

Preemption and Commandeering without Congress

Article excerpt

Introduction  I.     Partisan, Executive Federalism         A.   Environmental Protection        B.   Healthcare        C.   Immigration  II.    Preemption, Commandeering, and the Outsourcing of Coercion         A.   State Control over State Officials        B.   Horizontal Federalism: "Reciprocity" Without Reciprocity  Conclusion 


Contemporary political polarization has marginalized Congress in shaping domestic policy. Hyperpartisanship yields gridlock, particularly though not exclusively under conditions of divided government, and "gridlock makes alternative modes of policy making more attractive by shifting power away from Congress and toward the president and courts." (1) Accounts of the Obama and Trump Administrations are rife with claims of unilateral executive action, sometimes but not always checked by the federal judiciary.

These accounts tend to ignore the states. Although "the inability to get policy through Congress leads presidents to engage in unilateral action," (2) such action is often not so much truly unilateral as joined with state action. When presidents want to achieve durable policy change without Congress, they work together with ideologically aligned states. And as they do so, they are resisted by ideologically opposed states. In an age of polarization, states are at once principal implementers and leading opponents of federal executive policy. Many executive orders, rules, guidance documents, and enforcement decisions are thus better regarded as multilateral, not unilateral, undertakings.

Consider, for instance, one of the most salient and controversial issues in U.S. politics today: immigration. From seeking to strip funding from sanctuary jurisdictions, to rescinding Deferred Action for Childhood Arrivals (DACA), to increasing raids and arrests, the Trump Administration has acted unilaterally, insofar as this means without Congress. But such executive action has significantly involved the states. Red states have assisted the federal executive branch by mandating cooperation with U.S. Immigration and Customs Enforcement (ICE) and enforcing federal immigration laws more stringently within their borders. Blue states have been forceful opponents of President Trump's policies, suing to enjoin executive decisions and adopting their own laws to furnish protection for undocumented immigrants. These varied state policies mean that federal immigration enforcement looks different across the country as it is shaped by the interaction of federal executive and state policies. It has nearly nothing to do with Congress.

Drawing on immigration and other domestic policy areas, this Essay argues that we should shift much of our focus from the national legislature to the fifty states. The "without Congress" descriptor in the title is, of course, hyperbolic. Congress retains its powers and might be invigorated by bipartisan concerns about President Trump's autocratic demagoguery (although partisan loyalty is thus far eclipsing such concerns). Moreover, Article I of the U.S. Constitution looms over all domestic policymaking: Even when Congress does not enact a new law, the President and the states alike purport to be advancing prior legislative decisions, not flouting or ignoring them. But if we focus on Congress at the expense of the states, we miss critical dimensions of contemporary national policymaking.

After describing how states both effectuate and challenge federal executive policy, this Essay addresses novel threats to these state roles. Using immigration federalism as an example, I ask where preemption stops and commandeering begins when the federal government seeks to achieve its ends by removing state officials from the state's control. Looking to proposed firearms legislation, I consider federal efforts to displace state law by requiring states to defer to other states' policies. Such attempts to preempt allocations of authority within and among the states are inconsistent with core federalism principles. …

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