Dual Federalism Research Articles

Texas's "Operation Lone Star": The Supremacy Clause and Dual Federalism in Light of Arizona v. United States

The Supremacy Clause of Article Six of the United States Constitution was enacted to remedy the failures of the Articles of Confederation. Initially, the states enjoyed near-boundless state sovereignty in nearly all aspects of the first federalist government. However, in practice, the necessity of federal supremacy for conducting the business of governing obligated the states to prioritize national interests above the states’ sovereignty. To do so required revision of the Articles of Confederation. This drafting culminated in the contentious ratification of the Constitution in 1788, including the Supremacy Clause and the Tenth Amendment. That said, ratifying the Supremacy Clause and establishing the demarcations of state sovereignty as provided by the Tenth Amendment was antagonistic, while state and federal laws each explored the margins of the other’s authority. The first challenge commenced with McCulloch v. Maryland and the Necessary and Proper Clause, which established the implicit powers necessary to exercise those powers enumerated in the Constitution. Commencing with the Naturalization Act of 1790, immigration became a matter for the federal government to regulate. Since the Naturalization Act’s enactment, the U.S. Supreme Court has consistently held that the federal government has broad and exclusive authority in immigration.

Federalism as an institutional doctrine

Federalism as an institutional doctrine

Article 9 - EU FTAs and divided sovereignty: Transformative shifts in trade authority

EU trade policy has evolved on the scope of its remit through what can be framed as “creeping competence” (Pollack 1994, 2000). Since the Treaty of Rome to the Lisbon Treaty the EU has consolidated its sovereignty over trade by broadening its competences. However, the enlarged scope of EU FTAs has pushed subnational units to demand shared sovereignty over trade issues to protect the status quo on their regulatory competences. In turn, the 2017 Court of Justice ruling that the EU-Singapore Agreement could only be concluded with the consent of the EU and its Member States has led the Commission to propose the splitting of trade deals into EU-only and “mixed” agreements. While the EU holds to its exclusive competences in the former, mixed agreements require divided sovereignty with the member states. Both the engagement of subnational entities in trade policy and the impact of the Court decision represent transformative shifts in the locus of trade policymaking from centralized competences to divided sovereignty with national and subnational entities. The ensuing difficulties in ratifying EU trade agreements have prompted stop-gap solutions that raise questions as to where the pattern of “creeping competence” is applicable. These political and legal challenges highlight that “creeping competence” may have unintended consequences unleashed by the dynamics of the policy itself. In trade policy the notion of “creeping competence” has to capture the legal challenges, the efforts to claw back centralization, as well as the pushback by subnational entities to protect their regulatory sovereignty.

La metamorfosis del federalismo mexicano. ¿Hacia un federalismo asimétrico?

The international doctrine has agreed that federalism cannot be immutable, however, in Mexico, it is conceived as an irreformable constitutional principle, which has made it very difficult to adapt it to the needs of the country. Although federalism has mutated from dual federalism to national federalism, this has always been considered an attack on the federal principles of free and sovereign states and municipal autonomy. The polarization of the country makes it necessary to rethink the system of distribution of competencies, perhaps towards an asymmetrical model, where differentiated rules are established according to the different realities of the country.

“Maximum Autonomy with Divided Sovereignty”: An Extrapolation of Eqbal Ahmad’s Solution to the Kashmir Conflict

The Kashmir conflict, ongoing for over seventy years, is no closer to a resolution. The separatist insurgency that had emerged in the late 1980s, along with attendant military action, has claimed over 50,000 lives till date. However, the three major parties to the conflict, the Indian state, the Pakistani state and the Kashmiri separatist movement continue to have mutually-intractable positions. How might these positions be reconciled? Eqbal Ahmad’s proposal attempts to reconcile the three positions through the prism of “maximum autonomy with divided sovereignty.” This essay extrapolates Ahmad’s proposal, and presents two distinct facets to the solution: Azad Jammu and Kashmir and Gilgit-Baltistin to become full territories within the Pakistani state; the Jammu region and Ladakh to become full territories within the Indian state; and the Kashmir valley to become an independent Kashmir state. The independent Kashmir state would share its sovereignty, to a limited extent, with India and Pakistan. This paper extrapolates the contours of Ahmad’s proposal, particularly in the context of previous attempts by India, Pakistan and Kashmiri separatists to force a resolution in their favor.

New Theories of Federalism System, Indian Republic Model

Co-operative federalism is a model of intergovernmental relations that recognizes the overlapping functions of the national and state governments. This model can be contrasted with the model of dual federalism, which maintains that the national and state governments have distinct and separate government functions. In general, co-operative federalism asserts that governmental power is not concentrated at any governmental level or in any agency. Instead, the national and state governments share power. For instance, bureaucratic agencies at the national and state level normally carry out governmental programs jointly. Because the governments’ responsibilities are split between many levels of government, citizens and organized interests have many access points to influence public policy.

Sovereignty: Seventeenth-Century England and the Making of the Modern Political Imaginary. Feisal G. Mohamed. Oxford: Oxford University Press, 2020. Pp. viii+220.

<i>Sovereignty: Seventeenth-Century England and the Making of the Modern Political Imaginary</i>. Feisal G. Mohamed. Oxford: Oxford University Press, 2020. Pp. viii+220.

Fractured Unions: Brexit and the Territorial Constitution

During the Brexit negotiations, the UK’s main preoccupation was not trade and market access but sovereignty, which it saw as threatened by membership of the EU. This was based upon one particular conception of sovereignty, and on the view that the UK is a unitary state, rather than a plurinational union in which the question of sovereignty has never been settled. These profound differences in understandings of sovereignty underlie differing orientations towards Europe. The UK system of devolution in place since the millennium was deeply embedded in assumptions derived from UK membership of the EU, so that Brexit destabilised the settlement. Brexit has unleashed both centrifugal forces, in the shape of secessionist pressures, and centripetal tendencies, in the form of UK Government attempts at recentralisation. While Northern Ireland received a special dispensation in the form of the Northern Ireland Protocol, demands for a differentiated Brexit for Scotland have been rebuffed. Neither the fragmentation of the UK into its constituent nations nor the restoration of the unitary state provides a straightforward solution. These would merely shift borders when the real problem is the existence and nature of borders in a world marked by shared and divided sovereignty, interdependence and asymmetry.

‘In the vertigo of this freedom’: Democracy between procedural and divided popular sovereignty

The aim of this article is to investigate the Habermasian way of problematizing the European political situation through consideration of the conceptual framework within which he develops his proposal. I begin by clarifying various conceptual difficulties that emerge when thinking about politics within the European Union. I then focus on the concept of popular sovereignty as procedure, which Habermas develops in Between Facts and Norms against the historical backdrop of the nation state. In the debate regarding European constitutionalization, the concept of popular sovereignty as procedure first assumes a critical function (made possible owing to its desubstantializing effect) against proponents of the no demos thesis. More recently, Habermas has advanced a concept of shared/divided sovereignty, which becomes indispensable when we consider Europe as a democratic federation. The conclusions hereby drawn disclose two problematic aspects of Habermas’s recent proposal. Respectively, these concern the viability of his approach and the questionable plausibility of this proposed federation’s ability to uphold democracy in terms of self-determination.

Partisan Fractures in U.S. Federalism’s COVID-19 Policy Responses

The comparatively poor U.S. response to COVID-19 was not due to federal inaction or a flawed federal system per se but to party polarization and presidential and gubernatorial preferences that frustrated federalism’s capacity to respond more effectively. The U.S. response is examined in terms of four models: coercive or regulatory federalism, nationalist cooperative federalism, non-centralized cooperative federalism, and dual federalism--finding that state-led dual federalism was the predominant response. The crisis also raised questions about interpretations of “federal inaction” because party divisions led some to regard the federal government’s response as inadequate while others viewed it as appropriate.

Coequal Federalism and Federal-State Agencies

Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which predominates in the Supreme Court’s jurisprudence. Recent academic theories of federalism have emphasized overlap and interaction, but still with the assumption that federal and state actors will work within separate institutions. Each approach can be deeply problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism, which we label coequal federalism. Under coequal federalism, federal- and state-appointed officials work together within a single agency, and that single agency makes decisions that can bind the federal government and the states. This form of federalism exists, but only within obscure niches of American governance, and it is almost entirely absent from theoretical discussions. We argue that it should receive more extensive attention and use. More specifically, we explain how coequal federalism can function in practice, when it will offer a desirable alternative to more traditional federalism approaches, and why it is constitutional.

Can the Anglo-Scottish Union Survive Brexit?

Since 1999 Scotland has a devolved Parliament and Government. The European Union provided an important framework. EU membership reinforces ideas of shared and divided sovereignty. Through the European Single Market it secures the internal market of the United Kingdom itself. The EU, together with the European Convention on Human Rights, directly applicable in Scotland, separates rights from nationality. Brexit thus destabilizes the domestic devolution settlement.

Federalismo y legislación penal. Un análisis sobre su evolución en México

Este trabajo analiza la evolución de las competencias legislativas entre la Federación y los Estados de México en materia penal, que inicialmente se basaban en un federalismo puro o dual, donde cada uno decidía libremente sobre los aspectos de su incumbencia, pero que paulatinamente se ha ido debilitando al trasladarse cada vez mayores facultades legislativas al Congreso de la Unión, en detrimento de las de las autoridades locales, por lo que el autor analiza la viabilidad de este nuevo modelo en el contexto del federalismo en México.

Sovereignty and Autonomy of Constituent Units in Federal and Quasi-Federal Systems: An Empirical Study of Italy

When outlining the main features of a federal state, scholars agree on the fact that both the federal government and the constituent units of a federation are sovereign in their own powers, meaning that they both share the “nature of state” and enjoy the whole bundle of functions and state powers. This idea of “divided sovereignty” between federal and peripheral units (entrenched for the first time in the US Constitution of 1787) is usually regarded as one of the most important features distinguishing a federal from a regional state: in fact, in a regional model sovereignty belongs to the centre, with territorial sub-units merely enjoying some mild form of autonomy. In other words, in regional states peripheral units are autonomous but not sovereign, as sovereignty remains “undivided” and “anchored” with central institutions. This thin line dividing sovereignty and autonomy seems to play a very crucial role in regional states, but not so much in fully-fledged federations, considering that the two concepts — sovereignty and autonomy — are often used indistinctly. By looking at Italy as a case-study and at the interpretations of the concept of autonomy forged by the Italian Constitutional Court, this presentation aims to trace the difference between dual sovereignty and autonomy in federal and quasi-federal systems.

Ideas of Ulrich Beck in the Сontext of Modern Methodological Searches in World Sociology

The article reconstructed the system and method of the German sociologist Ulrich Beck. The importance of this work in the methodological situation in modern sociology is shown. This situation is due to changes in the social world and the fourth scientific revolution, which takes place in science in general. A significant part of the concepts included in the conceptual networks of various paradigms of modern sociology were formed during the second scientific revolution. In addition, sociologists, who investigate the Modernity, face the impact of unscientific circumstances, such as global threats, pressure of the ruling classes, and others. Ulrich Beck influenced world sociology with concepts of risk society, Second Modernity, cosmopolitanism. His critique of methodological nationalism is important. His call for overcoming “zombie concepts” remains valid. At the same time, the German sociologist, calling for a new utopia, saw the path to a cosmopolitan federation of states with divided sovereignty in establishing cooperation between capital, states, and civil society. He could not offer any real mechanisms for this cooperation. For progressive shifts in the problems of modernity, the synthesis of the ideas of the Second Modern, the sociology of creative Marxism, the world-systems analysis and ecological sociology can be useful. By this time, these traditions are divided by barriers of incomprehension and competition for intellectual novelty. In the theory of the Second Modern, the disadvantage is also a strong contextual dependence on the current political situation. U. Beck created his texts as comments to current processes. For ideological synthesis, it is necessary not only to recreate the course of thoughts of sociologists, but to present their ideas in the form of coherent concepts in the context of the requirements of a new methodological situation. The Second Modern and its characteristics such as Globalization can be considered as a stage in the development of the world capitalist system. The idea of a Risk Society can resonate with the development of Environmental Sociology. Criticism of neoliberalism in the sociology of creative Marxism can provide greater objectivity to the idea of cosmopolitanism. But for this, it is necessary to reconstruct the conceptual series of these research directions, their methodological guidelines in connection with the philosophical foundations of their metasociological knowledge.

The Threat of Consolidation: States' Rights and American Discourses of Nation and Empire in the Nineteenth Century

A paradox of U.S. history has been Americans' commitment to limiting the power of their national government—often articulated as a defense of states' rights—amid that same government's rise to a continental and then world power. Connecting nineteenth-century debates over federalism with the intertwined discourses of nation and empire, this essay explores that contradiction by examining how states' rights advocates used the term "consolidation" to critique the emerging concept of the nation-state. The essay argues that critics of consolidation offered a vision of American expansion organized around the principle of divided sovereignty as the best means for governing a heterogeneous collection of territories and peoples. In this respect, states' rights provided Americans committed to a self-image as the world's leading democratic republic with a roadmap for joining the fraternity of empires via a rhetoric ostensibly aimed at preventing tyranny by the center.

Brexit and the Common Law Constitution

This article considers the implications that Brexit holds for the UK’s ‘common law constitution’ – the body of principles and norms that the courts have developed in case law on EU membership, fundamental rights, and devolution. Focusing on the Supreme Court’s ruling in Miller, it argues that Brexit may have paradoxical effects within the case law. These start with the fact that the Supreme Court rationalized EU withdrawal in terms of Parliamentary sovereignty, but did so in a manner that casts doubt on the utility of distinctions between ‘internal’ and ‘external’ law. However, it is in the context of rights and devolution that the Supreme Court’s reliance on Parliamentary sovereignty as UK law’s ‘rule of recognition’ is most problematic, and the article notes a number of tensions in the law. In relation to rights, these are a result of an apparent retreat from a line of case law that had previously indicated that the courts might impose substantive limits on the powers of the Westminster Parliament. The tensions around devolution are a result of the subordinate role that the rule of recognition accords to the devolved institutions and its inability to accommodate any conception of ‘divided sovereignty’.

The deaths of Moses: The death penalty and the division of sovereignty

Derrida insists that any effort to think theological–political power “in its possibility” must begin with the death penalty. In this paper, I revisit the death of Moses Paul, “an Indian,” executed in New Haven in 1772 for the murder of Moses Cook, a white man. The Mohegan minister Samson Occom delivered Paul’s execution sermon and accompanied him to the gallows. Revised, Occom’s sermon was one of the first works published by a Native American author in English. Occom suggests there can be a theological–political power that signals itself not by decreeing the death penalty, but by opposing it. Hence sovereignty can be thought, with and against Derrida, as the theologico-political power to restore life. By opposing death to grace, moreover, Occom achieves a division of sovereignties, creating an opening for Indigenous nations within the scaffolding of the settler state. Working in collaboration, then, Occom and Paul produce a political theology.

Divided Sovereignty, Nation and Legal Community

AbstractWith a view to EU democracy, Jürgen Habermas introduced the idea that the relationship between the roles of state citizens and European citizens should be understood as a form of ‘divided sovereignty’. This notion is a constructive solution to theoretical problems resulting from the goal of realizing national and European democracy at the same time, but one might suspect that one of the suggested roles comes more naturally to most citizens. While state citizenship can draw on national identities, EU citizenship appears artificial and constructed, and hence not very attractive. I argue that the contraposition of ‘natural’ vs. ‘artificial’ sovereigns is inadequate. Both parts of divided sovereignty need to be understood in a constructivist sense as they are attributed to legal associations. Much in the same way as the idea of national sovereignty had to be appropriated in learning processes, citizens could grow into the role of EU sovereigns.

The Failure of Education Federalism

Since the Great Recession of 2007–09, states have devoted even less money to public education and state courts have become even more hostile to structural reform litigation that has sought to challenge education funding and quality. Yet the current model of education federalism (dual federalism) leaves these matters largely to the states. As a result, state-level legislative inaction, executive acquiescence, and judicial abdication can combine to create a situation in which the quality of traditional public schools declines sharply. This is the case in Michigan, which is an unusually important state not only because the dynamics that are emerging in some other states are mature in Michigan but also because Michigan is the home state of Secretary of Education Betsy DeVos, who has influenced the state’s education policy substantially. Glaring gaps in educational quality like those in Michigan are not the federal government’s problem, and in some ways the federal government’s hands are tied when it comes to being part of the solution. This must change. Dual federalism does not reflect the current reality of many federal-state-local relationships, and it is sorely outdated in the context of public education. Accordingly, I argue for a larger, though by no means exclusive, federal role in K-12 public education with the goal of establishing a floor of educational quality for students across the country. In addition to proposing legislative and agency-based changes, I advance the novel litigation strategy of pairing a minimal educational quality right via Substantive Due Process with rational basis with bite review under the Equal Protection Clause. In these ways and others, we must move to a new model of federalism in education—cooperative federalism. Without this shift, a floor of educational quality will continue to be uneven both among and within states, and in more and more places like Michigan, the floor will rot and students will fall through.