A Dynamic Defense of Cooperative Federalism

Abstract

The battle over federalism theory has yet to yield a victor. It is safe to say that dual federalism is dead, but recent commentators, particularly Robert Schapiro, have promulgated shiny new theories of federalism to take its place. What the current literature lacks is a concise, useful comparison of the rival theories. This Article compares the three major competing families of federalism theory: dual, cooperative, and dynamic. Adopting Schapiro’s normative framework, I analyze these three models in light of their instrumental utility. The assessment leads to a surprising and ironic conclusion: Schapiro’s polyphonic theory fails under his very own analytic rubric. Cooperative federalism, by contrast, outshines its competitors in two ways. First, within a framework of shared regulatory sovereignty, cooperative federalism optimally distributes segments of legislative authority by allowing the national government to enunciate broad, first-order norms and allowing the states to craft complementary regulations within those boundaries. Second, recent work in cooperative federalism shows that it can step outside the obsolete realm of sovereignty tug-of-war. In this way, cooperative federalism empowers states to realize their policy goals even in the absence of strict regulatory autonomy.