Red State Federalism

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3 Responses

  1. Jason Mazzone says:

    This is a very interesting post. I have two brief comments: (1) Arizona might say that its only opposition to federal law is to the lack of enforcement on the part of the federal government. This, then, might be an unusual kind of dialogue: the state is not expressing hostility to federal law but is instead asking for a stronger federal presence. (2) I wonder whether you think that state expression informs (or should inform) our understanding of the scope of federal power. I can see two ways in which this might occur. State opposition to federal law might suggest that Congress has exceeded its bounds. State support for federal laws (an issue that arose in US v. Morrison) might suggest that Congress has acted properly.

  2. Robert Schapiro says:

    Jason, thanks for your thoughtful comment. I think federalism allows a state to object to federal policy, whether that policy is expressed through statute or through (non-)enforcement practice. Further, I think that state expression does and should inform our view of appropriate federal policy. However, it is hard for me to see how state expression can influence the constitutional scope of federal power. The constitutional independence of federal and state power is an important feature of our federal system. That is the message of U.S. v. Morrison and of Gonzales v. Raich. Arguable exceptions exist. For example, state actions can create a predicate for a federal response under the enforcement clause of the Fourteenth Amendment, but I think these areas remain exceptional.

  3. Jason Mazzone says:

    The idea would be that in close questions on the scope of congressional power (if there are any such questions anymore), state support for a contested federal law would weigh in favor of finding congressional authority.

    There is some support for this idea in Harlan’s opinion in Champion v. Ames, 188 U.S. 321, 357 (1903): “In legislating upon the subject of the traffic in lottery tickets, as carried on through interstate commerce, Congress only supplemented the action of those states–perhaps all of them–which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their respective limits. It said, in effect, that it would not permit the declared policy of the states, which sought to protect their people against the mischiefs of the lottery business, to be overthrown or disregarded by the agency of interstate commerce.”

    Ames, was, of course decided in a different age. And you are right that this suggestion finds no basis in Lopez or Morrison. So as a practical matter the dialogue you identify is one that can have political significance but it does not inform constitutional interpretation.

    I look forward to reading the book.