an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A New Ideal (and Reality) for State-Federal Relations?
Heather K. Gerken
Yesterday I argued that it’s time for a détente in federalism debates because the "new nationalists" have undermined a core assumption undergirding federalism debates. Specifically, they've shown that the causal arrow doesn’t hold constant in federalism debates – that devolving power to the states can serve national ends. They've thus undermined the key assumption that scholars on both sides of the debate have made about the relationship between means and ends.
One might nonetheless think that federalism’s traditional camps will still hold because they still remain divided over ends. Here, too, the work of the new nationalists should shift existing battle lines because they have put forward a distinctive picture of federal-state relations, one that neither camp anticipated. The work has drawn attention to an important form of state power neglected by both camps, and it has offered a different vision of what constitutes a thriving national democracy. These claims are both descriptively convincing and normatively attractive—that sweet spot for legal scholarship.
The vision of federal-state relations that undergirds the work of the new nationalists is one in which the states and federal government regulate cheek to jowl, sometimes leaning on one another and sometimes deliberately jostling each other. It’s one in which the federal government can regulate where it sees fit and yet the states retain a vibrant and important role. It is one where the national government can and does regulate wherever it chooses, and yet the states haven’t been displaced—far from it. Function does not always follow form, and power does not always follow the exercise of jurisdiction. Even when the national government intervenes, it rarely displaces the states and regularly empowers them. As a result, the states play a vibrant and robust role in this regime not as separate or autonomous sovereigns, but as key parts of an integrated and interconnected regime.
Ours is thus a state of affairs that members of both camps failed to predict and that some continue to resist. Federalism’s stalwarts have insisted that the states are losing power, but that’s only because they refuse to recognize cooperative federalism as federalism at all. And the traditional nationalists miss how powerful state agents can be in a principal-agent relationship.
Thanks to the new nationalists, this is by now a familiar point in many arenas. But if anything, the new nationalists have been too circumspect in describing this reality. The vast majority of the work on this issue—mine included—has focused on areas where we can identify the formal markers of federal-state arrangements and trace its interactions through conventional legal sources. But, as I argue in the paper, these relations exist even in areas that lack the formal markers of federal-state cooperation, areas where we can’t trace federal-state interactions through traditional legal sources. When you begin to look at these areas (criminal law, family law, education law, immigration law), you realize that the new nationalists’ arguments apply even to areas of traditional state concern and to areas thought to belong to the federal government alone. That, too, is a reality that neither camp anticipated but ought to serve as common ground for debates going forward. Posted
by Heather K. Gerken [link]