Suchergebnisse

Cover -- Contents -- List of Illustrations -- Acknowledgments -- Preface -- 1 The Promise of Federalism -- The Case for Federalism -- Federalism and European Integration -- The Resilience of Established Federations -- Federalism and Democratization -- Federalism and Conf lict Management -- 2 Federal Principles, Federal Organization -- What Is Federalism? -- Group Identity -- Divided Powers -- Constitutional Guarantees -- Negotiating Compromise -- Social Solidarity -- Evaluating Federalism -- 3 Federal Systems -- Analytic Criteria -- Models and Variations -- Contextual Variables

Bridging the fields of federalism and negotiation theory, Negotiating Federalism analyzes how public actors navigate difficult federalism terrain by negotiating directly with counterparts across state-federal lines. In contrast to the stylized, zero-sum model of federalism that pervades political discourse and judicial doctrine, the Article demonstrates that the boundary between state and federal power is negotiated on scales large and small, and on an ongoing basis. It is also the first to recognize the procedural tools that bilateral federalism bargaining offers to supplement unilateral federalism interpretation in contexts of jurisdictional overlap. The Article begins by situating its inquiry within the age-old federalism discourse about which branch can best safeguard the values that give federalism meaning: Congress, through political safeguards; the Supreme Court, by judicially enforceable constraints; or the Executive, through administrative process. Yet each school of thought considers only how the branches operate unilaterally—on one side of the state-federal line or the other—missing the important ways that each one also works bilaterally across that line to protect federalism values through various forms of negotiated governance. Because unilateral interpretive methods fail to establish clear boundaries at the margins of state and federal authority, regulators increasingly turn to bilateral intergovernmental bargaining to allocate contested authority and facilitate collaboration in uncertain fed-eralism territory. Procedural constraints available within these negotia-tions can help bridge the interpretive gaps unresolved by more conven-tionally understood forms of interpretation. Creating the first theoretical framework for organizing federalism bar-gaining, the Article provides a taxonomy of the different opportunities for state-federal bargaining available within various constitutional and statutory frameworks. Highlighting forms of conventional bargaining, negotiations to reallocate authority, and joint policymaking bargaining, the Article maps this vast, uncharted landscape with illustrations ranging from the 2009 Stimulus Bill to Medicaid to climate policy. The taxonomy demonstrates how widely federalism bargaining permeates American governance, including not only the familiar example of spending power deals, but also subtler forms that have escaped previous scholarly notice as forms of negotiation at all. The Article then reviews the different media of exchange within feder-alism bargaining and the legal rules that constrain them, together with supporting data from primary sources. Finally, it evaluates how some forms of federalism bargaining—legitimized by the procedural constraints of mutual consent and the procedural engineering of regard for federalism values—can supplement unilateral interpretation. Differentiating itself from previous process-based claims, the analysis provides new theoretical justification for the interpretive work that federalism bargaining presently provides and calls for greater judicial deference to qualifying examples. Having offered recommendations about the kinds of federalism bargain-ing that should be encouraged, the Article offers recommendations for legislators, executive actors, stakeholders, practitioners, and adjudicators about how best to accomplish these goals.

Among the questions that vex the federalism literature are why states check the federal government and whether Americans identify with the states as well as the nation. This Article argues that partisanship supplies the core of an answer to both questions. Competition between today's ideologically coherent, polarized parties leads state actors to make demands for autonomy, to enact laws rejected by the federal government, and to fight federal programs from within. States thus check the federal government by channeling partisan conflict through federalism's institutional framework. Partisanship also recasts the longstanding debate about whether Americans identify with the states. Democratic and Republican, not state and national, are today's political identities, but the state and federal governments are sites of partisan affiliation. As these governments advance distinct partisan positions, individuals identify with them in shifting, variable ways; states loom particularly large when they are controlled by the party out of power in Washington. States also serve as laboratories of national partisan politics by facilitating competition within each political party. In so doing, they participate in national political contest without forfeiting the particularity and pluralism we associate with the local. By instantiating different partisan positions, moreover, states generate a federalist variant of surrogate representation: individuals across the country may affiliate with states they do not inhabit based on their partisan commitments. Attending to the intersection of partisanship and federalism has implications for a number of doctrinal controversies, such as campaign finance across state lines and access to state public records. The analysis here suggests that porous state borders may enhance states' ability to challenge the federal government and to serve as sites of political identification.

Many political issues like abortion, gay marriage or assisted suicide are strongly contested because individuals have preferences not only over their own choice but also about other individuals' actions. How should society decide these issues? This paper compares three regimes (centralization, decentralization and federalism) in an economy where individuals choose their residence and vote over a single-dimensional regulatory policy at the regional and national level. The main results are: (i) A move from decentralization to federalism, called moral federalism, is welfare improving behind the veil of ignorance if and only if centralization dominates decentralization, and (ii) for the group that favors a restrictive policy moral federalism is the more attractive the smaller its group size (subject to being the majority group), the larger the suffering from a given policy, and the smaller the regions' weight in determining the federal policy limit. The results are consistent with the Bush administration's attempt to restrict liberal policy choices at the state level after its narrow election victory in 2000.

Developments since 1977 in constitutional change, judicial review, fiscal arrangements, and intergovernmental relations; 9 articles.

The revival of states' rights may be the most substantial accomplishment of the Rehnquist Court's conservative majority. Cases concerning federalism do not regularly capture the newspaper headlines of hot-button constitutional disputes, but the jurisprudence of the Rehnquist majority has, in fact, been in retreat recently when it comes to affirmative action, abortion, school prayer, gay rights, and even the death penalty. In each area, conservative justices defected, creating de facto liberal majorities. When it comes to states' rights, by contrast, the conservative majority has changed constitutional law dramatically. Not long ago, few propositions could be asserted more confidently in law-school classrooms than that states enjoy almost no constitutional protection from congressional power. Now, the talk concerns increasing restraints on federal power. What may be called "Rehnquist Federalism" has not yet made a revolution, and defections occur in federalism cases, too. But Rehnquist Federalism has changed the legal landscape by limiting congressional efforts to provide everything from effective remedies against discrimination to enforcement of federal statutory guarantees of overtime pay-all in the name of "state sovereignty" and despite the arguments of the four liberals on the Court.