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Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. Constitutional federalism directives can be viewed as default rules that confer jurisdictional entitlements to state and federal actors, but the normative entitlement of a legal rule is always matched with an infrastructural component that designates how and whether the normative entitlement may be shifted. This chapter explores the extent to which federalism doctrine allows consensually negotiated exchange of these entitlements—such as waiver of Eleventh Amendment state sovereign immunity, or state waiver of enumerated powers limitations when accepting spending power deals conditioned on federal policies. It advocates more uniform use of the Calabresi and Melamed “property rule” remedy rule that enables bargaining with entitlements, rather than the inalienability or liability rule alternatives. When the Rehnquist Court created the anti-commandeering entitlement that states hold against Congress (in partially invalidating the Low-Level Radioactive Waste Policy Act in New York v. United States), it did not allow for consensual intergovernmental bargaining to shift the entitlement. Using New York as a case study, the chapter proposes that Tenth Amendment entitlements be harmonized with the rest of federalism doctrine to enable consensual legislative bargaining. Leaving the normative part of the anti-commandeering rule in place while enabling states to bargain with their entitlement would yield new possibilities for balanced interjurisdictional governance while retaining the most protective aspects of the rule. The bilateral nature of the exchange ensures that the negotiated balance reflects the interests of both state and federal actors. It also taps unique legislative resources for values-balancing in the fact-intensive policymaking contexts where legislatures outperform courts. By incorporating state and federal judgment, intergovernmental bargaining is preferable to the unilateral federal assertions of power or deference to state prerogative that characterize traditional political safeguards.

This chapter examines the classical liberal theory of rights, which holds that rights protect or secure a domain of autonomy. To have a right is to have control or liberty over that to which one is entitled. Guido Calabresi and others working within an economic framework have argued that rights can be secured either by property rules or by liability rules. Property rules secure rights by entitling people who hold rights both to exclude others from making use of protected property and to transfer protected property on terms agreeable to them. Liability rules secure rights by giving non-entitled parties the freedom to take what right owners possess provided they compensate ex post. There is an apparent conflict, then, between liability rules and the classical liberal conception of rights. The chapter offers a way of thinking about legal rights in which both prima facie plausible claims must be abandoned.