Bulman-Pozen, Jessica, Gerken, Heather K., The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. UNCOOPERATIVE FEDERALISM IN THEORY AND PRACTICE A. Uncooperative Federalism in Theory: The Power of the Servant Dependence 2. Integration 3. Two Masters B. Uncooperative Federalism in Practice 1. Licensed Dissent: Welfare to Work 2. Taking Advantage of a Regulatory Gap: The Clean Air Act 3. Civil Disobedience: The Patriot Act II. IS UNCOOPERATIVE FEDERALISM VALUABLE? A. Uncooperative Federalism Versus the Autonomy Model 1. The Administrative Safeguards of Federalism 2. Agenda Setting 3. Dissent as an Act of Affiliation 4. Accountability B. Uncooperative Federalism Versus the Political Safeguards of Federalism 1. The Ex Post Safeguards of Federalism 2. Dissenting by Deciding III. DOCTRINAL IMPLICATIONS A. Commandeering B. Preemption CONCLUSION
Federalism scholarship offers two distinct visions of federal-state relations. The dominant vision 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 the dominant vision ignores the substantial portions of "Our Federalism," (1) in which states are not autonomous policymakers but instead carry out federal programs. As the moniker suggests, scholars of cooperative federalism argue that states should serve not as autonomous outsiders, but supportive insiders-servants and allies to the federal government.
What is puzzling 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. It is as if the state's identity changes as it crosses from the territory of dual federalism to the terrain of joint regulation. When states are challenging federal power, we tend to depict them as autonomous sovereigns. When states are implementing federal mandates, we generally think they should act as cooperative servants. We have not, in short, fully explored the possibilities associated with what we call uncooperative federalism. (2)
Uncooperative federalism occurs when states carrying out the Patriot Act refuse to enforce the portions they deem unconstitutional, when states implementing federal environmental law use that power to push federal authorities to take a new position, or when states relying on federal funds create welfare programs that erode the foundations of the very policies they are being asked to carry out. We see examples of uncooperative federalism in such varied arenas as immigration, healthcare, and education. In each of these fields, states use regulatory power conferred by the federal government to tweak, challenge, and even dissent from federal law.
Most legal scholars are likely to be aware of this type of resistance, or at least unsurprised that it might occur. That makes the scholarly neglect of this topic all the more surprising. While uncooperative federalism occurs regularly within our federal system, we do not 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. (3)
The goal of this Essay is to provide an initial account of this undertheorized aspect of our federalism and to begin sketching a general theory about the relationship between the power of the sovereign and the power of the servant. We hope to convince readers that a sensible account of federalism ought to recognize that uncooperative federalism occurs in practice and to acknowledge that there are values associated with the phenomenon. In the process, we offer a new read on two of the most controversial strands of federalism doctrine--commandeering and preemption. …