Federalizing Federalism: Limiting the Effect of Interstate Markets on the Diversity of State Regulations

Abstract

This Article describes the effect that the interstate movement of regulated goods has on the ability of states to regulate independently of one another, and it posits a model for federal intervention designed to preserve the theoretical benefits of federalism’s allocation of power between the federal government and the states. In particular, this Article uses the example of firearms trafficking to create an empirical picture of the effect that interstate markets have on local regulations. By analyzing data from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Article quantifies the interstate market for firearms, identifies how that market targets particular states based on their comparatively high levels of regulation, and then dilutes that regulation through the importation of firearms from states with less strict regulatory regimes. Firearms serve as a remarkable illustration of the problem, but the case study is also significant on its own as states, the federal government, and the courts struggle with the need to preserve flexibility to address local conditions through gun laws. The Article then applies the lessons derived from that quantitative analysis to the theoretical debate surrounding federalism, evaluating in turn the ability of states to achieve benefits of federalism articulated by both scholars and the Supreme Court in the face of interstate market forces. Ultimately, the Article concludes that a federal response is needed, but not the sort of state-preemption response to which Congress usually turns. Instead, the Article examines particular enumerated powers, in the original understanding of the Commerce Clause, the Interstate Compacts Clause, and the Guarantee Clause to define a more limited model for federal action, focused on addressing the markets at issue, while leaving the substance of the underlying issue to the states.