Monday, April 21, 2014

Federalism by the Grace of Congress—and the Doctrines Needed to Protect the State Sovereign Acts it Generates

Abbe Gluck

My contribution to this symposium, Our [National] Federalism, is about modern federalism’s source, its domain, and its doctrines.  My main argument, which relates to the “nationalism” highlighted by the symposium, is that federalism now primarily comes from federal statutes—that Congress generates the modern era’s most significant federalism opportunities when Congress invites states to play leading roles in federal statutory schemes.  Distinct from the traditional conception, this “National Federalism” is neither a constant presence nor an entitlement. It comes and goes at Congress’s pleasure; it is a feature of federal statutory design that varies across statutes; and it simultaneously, and in tension, serves nationalist values at the same time that it does federalist ones.   Our Nationalism also looks different in this account.  It sheds its previously defining feature—uniformity—and instead embraces values like experimentation and local variation that are traditionally associated with federalism.

Recognizing federalism’s statutory domain, however, reveals a doctrinal wasteland. Modern accounts of interactive federalism have always suffered from a wishy-washiness problem when it comes to “real” law:  judges and scholars have spent years describing what federalism looks like and its benefits, but we still have no doctrines to effectuate the very real state power—indeed, the many state sovereign acts—that emerges from these national statutory schemes.  We have no consistent account, for example, of when state implementation of federal law gives rise to federal-court jurisdiction; whether federal or state standards of judicial review apply to the disputes that arise from these schemes; or how Chevron and its sister doctrines apply when state and federal implementers are in the game together.  My essay frames fifteen unresolved doctrinal questions of this nature—questions that are currently percolating and dividing the lower courts; that go to heart of state autonomy in the modern statutory era; but that cannot be resolved until we figure out what these things are and what law applies to them.  Is New York’s state implementation plan under the Clean Air Act state or federal law?  What about the Tennessee Medicaid program—labeled with the state-centered name, “TennCare,” an expressive act that tells us something about how the program is experienced on the ground.

Federalists should care about federalism’s statutory domain and the doctrinal gaps that I have revealed.   Whereas most of the other contributions to this symposium are pitched to nationalists—i.e., why nationalists should embrace federalism—my argument is directed at federalists.  My goal is to persuade federalists that there is real federalism inside federal statutes—indeed, some of the most important acts of federalism that we still have—but that the state power those statutes might generate is not being fully effectuated. On this particular point, my arguments are in dialogue with, but differ from, those of most my co-contributors in two fundamental ways. 

First,  in my view, state sovereignty and state power are the  ends, and ends worth preserving—not  the means to a nationalist end, like the development of ideal policy solutions or national consensus, even though I see federalism as generated from a national source. Second, the vision of national federalism that I offer is not a federalism shorn of sovereignty.   To the contrary, my argument is that federalism theory and doctrine have ignored the thousands of state sovereign acts—the passing of state laws by state legislatures, the creation of new state institutions, the hearing of cases exclusively in state courts, the appointment of new state cabinet members and so on—all of which result from Congress putting in motion national laws that offer states the frontline job of implementation, but that once so put in motion, incentivize state action that often looks no different from the types of sovereign actions undertaken by states acting alone.   The particularly doctrinal focus of my essay hones in on this point:  what kinds of doctrines will best effectuate this type of state power?  Such doctrines might include recognizing more aspects of state implementation (e.g., State Implementation Plans or Medicaid programs) as state, not federal, law; directing more of these cases to state courts; or applying state standards of review and administrative deference doctrines to the questions that they generate.  Federalists’ resistance to recognizing federalism’s statutory domain has prevented the development of the state-centered doctrines that statutory federalism requires.  But the alternative—insisting that states should play no role in national statutory schemes and ignoring the roles they do play—risks consigning the states to irrelevance when it comes to major questions of policy.

As my essay documents, the vast majority of recent cases in which the Supreme Court has uttered the word “federalism” have not been cases that raise questions implicating constitutional federalism doctrine.  They are cases about National Federalism—the federalism inside federal statutes—and federalists need a theory and set of doctrines to effectuate it.

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