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Federal Philosophies and the Structure of American Law

Robert Schütze

in From Dual to Cooperative Federalism: The Changing Structure of European Law

The constitutional battle over the nature of sovereignty and federalism in America produced a compromise in the late nineteenth century: dual federalism. The philosophy of dual federalism suggested a ... More

The constitutional battle over the nature of sovereignty and federalism in America produced a compromise in the late nineteenth century: dual federalism. The philosophy of dual federalism suggested a particular constitutional structure for the idea of duplex regimen: the tasks of government would be divided between two - mutually exclusive – spheres. The federal government and the States were seen as “equal” and “co-ordinate” within their respective spheres. This constitutional solution appeased moderate “Nationalists” and “Statists” for more than a century. The shift away from dual federalism took place in the 1930s and is linked to the American “New Deal”. Modern “New Deal” jurisprudence abandons the conceptual duality between commerce versus police power. The demise of the exclusive spheres equally takes place at the legislative level. Federal pre-emption abandons automatic field pre-emption. The principal exception to the rise of cooperative federalism is foreign affairs. The exclusion of the States from international treaty-making preserves an enclave of dual federalism.Less

American Federalisms: From New Foundations to New Federalism

Erin Ryan

in Federalism and the Tug of War Within

Chapter three reviews the history of American federalism as a story of competition between compelling principles in tension with one another, stretching the legal framework in one direction and then ... More

Chapter three reviews the history of American federalism as a story of competition between compelling principles in tension with one another, stretching the legal framework in one direction and then overcorrecting in another. Visualizing operative federalism theory as a four-dimensional pendulum, the chapter describes it swinging freely over time among the independent federalism values—pointing to a favorite at one period in history and another in a different era. Ongoing uncertainty about how judicial doctrine should resolve these issues is reflected by the Court’s vacillating case law over this time period. Chapter three traces the swing of the pendulum through American history, casting its arc in terms of shifting theories about how best to balance competing values. Its fluidity reflects the combined forces of gradual ideological oscillation and occasionally violent tug of war as social events impact the evolution of interpretive federalism theory. The chapter begins with the difficulties that the pioneers of American federalism faced in deciphering what their new concept of dual sovereignty would mean in practice, from the national bank to the southern nullification challenges to the Civil War. Dual federalism emerged as the theoretical touchstone of the nineteenth century, establishing the classical idealism for which later dualist models would yearn. Even so, the challenges of jurisdictional overlap were clear as early as the Federalist Papers and the Constitutional Convention’s replacement of the Articles of Confederation. The chapter then explores federalism’s tug of war during the second half of American history, focusing on the twentieth century. It reviews the Progressive and Lochner eras, the Great Depression and the New Deal, the Civil Rights Movement and Great Society eras that led to the entrenchment of cooperative federalism under the Warren Court, and finally the New Federalism challenge under the Rehnquist Court.Less

Dual Constitutions and Constitutional Duels

Jim Rossi

in New Frontiers of State Constitutional Law: Dual Enforcement of Norms

This chapter demonstrates the conceptual payoff in the context of the interplay between state and national legislative and executive power by focusing on two recurring problems of cooperative ... More

This chapter demonstrates the conceptual payoff in the context of the interplay between state and national legislative and executive power by focusing on two recurring problems of cooperative federalism: state implementation of federal programmatic directives, and state administrative borrowing of federal regulatory standards. In both of these situations, the state constitution may constrain the ability of state agencies to administer programs in the way they desire, most commonly through a strict nondelegation doctrine purportedly rooted in the state constitutional separation of powers. The chapter rejects the approaches to these problems worked out by both federal and state courts in favor of an approach based on comparative institutional analysis, informed by the dual enforcement model. On this view, state constitutions should not be construed to bar state administrative compliance with or adoption of federal legal norms because state constitutional nondelegation doctrines are better understood as responses to governance failures peculiar to state-level democracy; failures that have no relevance when a state legislature indirectly delegates power to the national government rather than to an organ of state government. This helps to shed light on the nature of executive power at the state level, particularly where national goals are at issue.Less

A Presidentializing Party State? A Presidentializing Party State? The Federal Republic of Germany

Thomas Poguntke

in The Presidentialization of Politics: A Comparative Study of Modern Democracies

The political process of the Federal Republic has always been characterized by two seemingly contradictory attributes. Germany was said to be a Chancellor democracy and party state at the same time. ... More

The political process of the Federal Republic has always been characterized by two seemingly contradictory attributes. Germany was said to be a Chancellor democracy and party state at the same time. Yet, this chapter shows that both features are not mutually exclusive. While political parties continue to occupy a central position in the political process of the Federal Republic, particularly when as regards political recruitment, they have been weakened when it comes to controlling the chief executive and the legislative process. The specific nature of German cooperative federalism furnishes the Chancellor with a central role in the decision-making process that makes him structurally more independent of his own party and of his coalition partners. This tendency has been augmented by the growing resources for the chancellor’s office, the internationalization of politics, the increasing tendency of the electronic media to focus on leaders, and the general decline of cleavage-based politics. At the same time, political parties have become leadership-dominated. While there are clear tendencies towards the presidentialization of the political process in the Federal Republic, parties continue to control the access to the chief executive office, and they still hold the power to remove their leaders.Less

The Return of Dualism

in Polyphonic Federalism: Toward the Protection of Fundamental Rights

This chapter investigates the failure of the dualist conception of federalism still dominant on the United States Supreme Court and in the halls of the academy. It outlines the dualist underpinnings ... More

This chapter investigates the failure of the dualist conception of federalism still dominant on the United States Supreme Court and in the halls of the academy. It outlines the dualist underpinnings of the current Supreme Court doctrine and the unfortunate results of the Court's dualist approach. The Court's dualist approach has narrowed the scope of both federal and state authority in important areas. The New Federalism of the Supreme Court constrains the power of the federal government. The anti-commandeering and sovereign immunity doctrines illustrate the difficulty in executing the dualist project. American Insurance Ass'n v. Garamendi reflects the power of a dualist approach to federalism. Constitutional federalism provides an important check on the states and the federal government colluding in promulgating national regulations. Furthermore, the process federalism, empowerment federalism, and cooperative federalism are elaborated. Cooperative federalism marks the end of dual federalism, but does not itself provide a replacement.Less

Federal Reform Strategies: An Introduction

Stephen Howes and M. Govinda Rao

in Federal Reform Strategies: Lessons from Asia and Australia

For large countries, an agenda of economic integration, deregulation and natural resource management reform typically cannot be effectively pursued without the active participation of subnational ... More

For large countries, an agenda of economic integration, deregulation and natural resource management reform typically cannot be effectively pursued without the active participation of subnational governments. While most of the literature about federalism and reform is about the reform of federalism, this volume is about reform through federalism. It explores federal reform strategies, that is, ways in which central governments can motivate, incentivise, influence and ensure coordination of subnational policies. It covers such mechanisms as the imposition of conditions on specific-purpose grants to subnational governments, the provision of grants if certain reforms are undertaken, the development of cross-government agreements, and the centralization of power from subnational to the central government. By exploring a range of case-studies, drawn mainly from India and Australia but also covering Indonesia and China, it fills the existing gap in the literature relating to federal reform strategies. This overview provides a conceptual framework, including a typology of strategies, summarizes the case-studies, and draws out some lessons learnt.Less

Cooperative Federalism

Robert P. Inman and Daniel L. Rubinfeld

in Democratic Federalism: The Economics, Politics, and Law of Federal Governance

This chapter describes Cooperative Federalism, which replaces Economic Federalism's nationally elected president with a “council” of locally elected representatives. Again there are multiple ... More

This chapter describes Cooperative Federalism, which replaces Economic Federalism's nationally elected president with a “council” of locally elected representatives. Again there are multiple provincial and local governments with important, possibly concurrent, policy responsibilities and revenues, but now national goods, services, and regulations are the responsibility of a locally elected national council. To ensure that each city's, state's, or nation's preferences are accommodated, Cooperative Federalism imposes a supermajority, often unanimity, voting rule. The resulting governments are known as confederal when representation is by geography, or consociational when representation is allowed more generally—say, from ethnic, religious, or economic groups. The primary virtue of Cooperative Federalism is its potential to protect the interests of minorities from Economic Federalism's tyranny of a majority under presidential governance. Since the stakes for minority citizens are potentially so high and the influence of each elected representative to the national council so decisive, democratic participation may be encouraged. It is on the dimension of economic efficiency in the provision of national goods and regulations that Cooperative Federalism is likely to fall short.Less

Epilogue

Robert P. Inman and Daniel L. Rubinfeld

in Democratic Federalism: The Economics, Politics, and Law of Federal Governance

This epilogue addresses the question of who should be federal. While there is much to recommend it, Democratic Federalism may not be for everyone. Any new nation-state seeks to do what smaller and ... More

This epilogue addresses the question of who should be federal. While there is much to recommend it, Democratic Federalism may not be for everyone. Any new nation-state seeks to do what smaller and spatially diffuse communities cannot: provide for mutually beneficial public goods, most notably collective security; control intercommunity spillovers; and enforce the rules needed for wider market exchange. Each new state must choose how best to run its affairs. Whether designed as Economic or Cooperative or Democratic Federalism, federal governance is one alternative. But so is a single, unitary government, or perhaps even to remain as separately governed jurisdictions and then manage shared interests by bilateral agreements. There are strengths and weaknesses to each form of governance. While numerous “fundamentals” will be important to the choice of governance—technology, geography, language, ethnicity—the chapter suggests two attributes that may be the most important: heterogeneity of tastes for government services and a willingness to compromise when there is disagreement. Democratic Federalism will be most appropriate for that middle ground where tastes are different but compromise still possible.Less

Climate Change and the Coastal Zone Management Act: The Role of Federalism in Adaptation Strategies

Chad J. McGuire

in Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives

This chapter focuses on the role of federalism in creating adaptation strategies along the coast. Emphasis is placed on the Coastal Zone Management Act (CZMA) and its role as the primary federal ... More

This chapter focuses on the role of federalism in creating adaptation strategies along the coast. Emphasis is placed on the Coastal Zone Management Act (CZMA) and its role as the primary federal planning statute that outlines the rights and responsibilities between coastal states and the federal government. Examples are used to highlight difficulties in fully implementing climate change adaptation strategies through the CZMA, particularly when coastal state and federal government interests diverge. The chapter concludes by highlighting suggestions to overcome federalism issues when they interfere with climate change adaptation strategies, and further identifies ways in which cooperative federalism can help achieve meaningful and proactive adaptation strategies along the coast.Less

Choosing Conflict: The Emerging State Challenge to Federal Power

Ben Merriman

in Conservative Innovators: How States Are Challenging Federal Power

Conservative state-level executive officeholders devised a remarkably successful resistance to key Obama administration policies. This chapter describes the basic goals and commitments of those ... More

Conservative state-level executive officeholders devised a remarkably successful resistance to key Obama administration policies. This chapter describes the basic goals and commitments of those officials, as well as deeper historical processes that enabled their success. The officials studied in this book endorse familiar conservative goals: low taxation, limited regulation, and increased state control of policy. They pursued those goals through an innovative, improvisational combination of administrative and legal behaviors. Several circumstances made this possible. First, the long-term development of a cooperative model of federalism drove enormous growth in the relative power of state executive branches. Second, shifting judicial doctrines have increased scrutiny of the federal administrative state, and made it easier for states to sue the federal executive. Third, ideological and geographic polarization produced persistent single party control of most state governments, but routinely divided national government. Under these conditions, the Obama administration’s turn toward a unilateral, executive model of policymaking after the Tea Party mobilization left its major policies highly vulnerable to concerted state opposition. State executives could take an uncooperative stance in implementation or invoke a wide range of legal objections. Conservative ideological convergence and expanded state executive power, coupled with a galvanizing national opponent, simplified multistate cooperation.Less

Making Our Future

K. Sujatha Rao

in Do We Care?: India's Health System

Four areas have been identified for immediate policy attention: a) decentralization and cooperative federalism, b) revamping of the delivery system, c) strengthening of the people’s sector, and d) ... More

Four areas have been identified for immediate policy attention: a) decentralization and cooperative federalism, b) revamping of the delivery system, c) strengthening of the people’s sector, and d) use of technology. Decentralization and cooperative federalism need to be accompanied with consensus-building on national health goals that all states are committed to and central funding to the poorer states for bridging the gap in supply. Likewise, the three-tier primary healthcare setup needs to be revamped with the capacity to provide primary healthcare services in a comprehensive manner. Strengthening public sector presence in the secondary and tertiary markets, people’s participation, and increased use of technology are vital for building a sustainable health system.Less