Judicial Resistance: Mandatory Arbitration as Federal Commandeering

Abstract

This Article argues that the current doctrine of preempting state substantive law in favor of the Federal Arbitration Act (FAA) violates core federalism principles generally, the Tenth Amendment specifically, and is contrary to well-established anti-commandeering and judicial federalism rules. These authorities are all concerned with a core federalism principle: state sovereignty. The states retained sovereignty when they joined the Union. The Tenth Amendment expressly enshrines this retention. Modern federal court doctrine, which imposes federal arbitration law on the states, encroaches on retained state sovereignty by preempting state substantive law. This is erroneous regardless of whether the FAA was enacted as a rule of federal judicial procedure or as an exercise of Congress’s substantive Commerce Clause power. Encroaching on the state’s retained sovereignty, as the FAA does, violates the fundamental federalism principle and opens a path toward disrupting the power balance between the state and federal governments that Madison considered crucial to protecting individual liberty. When one sovereign comes to dominate in a federalist system, that government begins to lose its federalist character. Consequently, conflict about the FAA is no dry procedural dispute — it is a battle over the republic’s core principles. State courts should continue to serve their federalist role and fight in their corners, and the U.S. Supreme Court should revisit its FAA interpretation.