3. The puzzling persistence of dual federalism

Abstract

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived since. The first purpose of this essay is thus taxonomical — that is, to distinguish between dual federalism and the several different models of federalism doctrine that have replaced it. These models — which include “managerial decentralization,” “cooperative (or uncooperative) federalism,” “subsidiarity” or “collective action federalism,” “process federalism,” and “immunity federalism” — each have their pros and cons, but all are better adapted than dual federalism to a post-New Deal world in which the federal government and the states share largely concurrent regulatory authority. My second purpose is to complain about residual notions of dual federalism in the field of foreign relations law. Those tendencies were on display in the Ninth Circuit’s decision in United States v. Arizona, striking down most of Arizona’s immigration law, in part on the ground that immigration, as an aspect of foreign relations, is an exclusively federal sphere. The U.S. Supreme Court’s opinion affirming the Ninth Circuit last term largely avoided such arguments, focusing instead on the specific preemptive effect of federal legislation in the field. But notions of federal exclusivity persist in foreign relations law. I argue that such notions are inconsistent with the general blurring of lines between foreign and domestic affairs that has typified the process of globalization. Finally, I contest Prof. Barber’s assertion that any notion of entrenched federalism limits on national power is conceptually incoherent. Barber asserts that federalists simply can’t make such arguments, because those arguments would have to be addressed to a national audience and presented in a national forum. One is reminded of Mark Twain’s response when asked if he believed in infant baptism: “Of course I do,” he said. “I’ve seen it done.” The more difficult problem in federalism doctrine, which Prof. Barber does not address, is simply the drawing of principled and determinate lines. On that measure, some of the other models discussed earlier are likely to fare better than dual federalism.