Uncooperative federalism

Yale Law Journal

Volumn 118, Issue 7, 2009, Pages 1256-1310

  Jessica, Bulman Pozen ^a   Gerken, Heather K ^a  

^a YALE UNIVERSITY   (United States)

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EID: 70349257377     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (343)

1. Younger v. Harris, 401 U.S. 37, 44 (1971).
2. It appears that four legal commentators have used this term before, with three mentioning it only in passing and in the process of complaining about the notion, and none offering anything akin to the normative and doctrinal framework we offer here. See Jackson B. Battle, Transportation Controls Under the Clean Air Act-An Experience in (Un) cooperative Federalism, 2 LAND & WATER L. REV. 1 (1980) (describing state resistance to federal transportation controls and outlining strategies for pushing states to comply);
3. Kirk W. Junker, Conventional Wisdom, De-Emption and Uncooperative Federalism in International Environmental Agreements, 2 LOY. U. CHI. INT'L L. REV. 93, 96 (2004) (arguing that the United States should use "de-emption" to allow states to sign international environmental agreements);
4. Thomas O. McGarity, Regulating Commuters To Clear the Air: Some Difficulties in Implementing a National Program at the Local Level, 27 PAC. L.J. 1521, 1625 (1996) (warning that state resistance to clean air requirements jeopardizes progress made in this area);
5. Karen Bridges, Note, Uncooperative Federalism: The Struggle over Subsistence and Sovereignty in Alaska Continues, 19 PUB. LAND & RESOURCES L. REV. 131 (1998) (describing Alaskan resistance to federal hunting and fishing regulations and proposing greater deference to Alaskan citizens).
6. Following the lead of Nestor Davidson, see Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959 (2007), we might speculate about the possibilities associated with "uncooperative localism" as well.
7. Even the scholars who have thought about what we call the power of the servant have largely ignored the ways in which that power might be deployed to contest federal policy. See infra text accompanying notes 123-124.
8. ALBERT O. HIRSCHMAN, EXIT, VOICE, AND LOYALTY: RESPONSES TO DECLINE IN FIRMS, ORGANIZATIONS, AND STATES (1970).
9. For surveys of these arguments, see, for example, DAVID L. SHAPIRO, FEDERALISM: A DIALOGUE 107-40 (1995);
10. Akhil Reed Amar, Five Views of Federalism: "Converse-1983" in Context, 47 VAND. L. REV. 1229 (1994);
11. Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995);
12. Barry Friedman, Valuing Federalism, 82 MINN. L. REV. 317 (1997);
13. and Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. CHI. L. REV. 1484 (1987).
14. E.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting);
15. see, e.g., FERC v. Mississippi, 456 U.S. 742, 788 (1982) (O'Connor, J., concurring in part and dissenting in part);
16. SHAPIRO, supra note 5, at 103;
17. Amar, supra note 5, at 1233-36;
18. McConnell, supra note 5, at 1498-1499
19. See, e.g., Amar, supra note 5, at 1236-1240
20. This notion, which builds on the work of Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416 (1956), is nicely explained by Michael McConnell.
21. See McConnell, supra note 5, at 1494.
22. See, e.g., Akhil Reed Amar, of Sovereignty and Federalism, 96 YALE. L.J. 1425 (1987).
23. See, e.g., Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism fir a Third Century, 88 COLUM. L. REV. 1, 7 (1988);
24. Ernest A Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 58-59 (2004).
25. Adam B. Cox, Expressivism in Federalism: A New Defense of the Anti-Commandeering Rule?, 33 LOY. L.A. L. REV. 1309, 1312 (2000) ("I suggest that the anti-commandeering rule might serve to protect the capacity of the states to act as political counterweights to the federal government by preserving and reinforcing public perception of the states as credible alternative political institutions.").
26. Matthew C. Porterfield, State and Local Foreign Policy Initiatives and Free Speech: The First Amendment as an Instrument of Federalism, 35 STAN. J. INT'L L. 1 (1999);
27. Ernest A. Young, Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror, 69 BROOK. L. REV. 1277, 1288-91, 1295-1301 (2004).
28. In a different context, Akhil Amar has argued that states, like individuals, "must be free to speak out," drawing upon American history to show the ways in which states have played an important role in challenging slavery and other shameful practices. Akhil Reed Amar, Op-Ed., A State's Right, a Government's Wrong, WASH. POST, Mar. 19, 2000, at Bi.
29. See Porterfield, supra note 12, at 23-48;
30. cf. Andrea L. McArdle, In Defense of State and Local Government Anti-Apartheid Measures: Infusing Democratic Values into Foreign Policymaking, 62 TEMP. L. REV. 813 (1989) (looking to the First Amendment to shield state efforts from challenge under the Foreign Affairs Clauses). Young, who offers a thoughtful analysis of the pros and cons of this approach, tentatively suggests that states might be granted a narrower First Amendment right than individuals, though he closes by observing that the anticommandeering doctrine may offer a more "workable accommodation of state and local expressive interests."
31. Young, supra note 12, at 1295-1301.
32. Others have considered the possibility of a First Amendment right for states outside the context of federalism debates. See, e.g., Meir Dan-Cohen, Freedoms of Collective Speech: A Theory of Protected Communications by Organizations, Communities, and the State, 79 CAL. L. REV. 1229, 1258-66 (1991);
33. David Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. REV. 1637 (2006).
34. See, e.g., DANIEL J. ELAZAR, AMERICAN FEDERALISM: A VIEW PROM THE STATES 162 (2d ed. 1972);
35. MORTON GRODZINS, THE AMERICAN SYSTEM: A NEW VIEW OP GOVERNMENT IN THE UNITED STATES (1966);
36. John Kincaid, The Competitive Challenge to Cooperative Federalism: A Theory of Federal Democracy, in COMPETITION AMONG STATE AND LOCAL GOVERNMENTS: EFFICIENCY AND EQUITY IN AMERICAN FEDERALISM 87 (Daphne A Kenyon & John Kincaid eds., 1991) [hereinafter COMPETITION AMONG STATE AND LOCAL GOVERNMENTS];
37. Susan Rose-Ackerman, Cooperative Federalism and Co-optation, 92 YALE L.J. 1344 (1983);
38. Philip J. Weiser, Federal Common Law, Cooperative Federalism, and the Enforcement of the Telecom Act, 76 N.Y.U. L. REV. 1692 (2001);
39. Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663 (2001) [hereinafter Weiser, Cooperative Federalism] ;
40. Joseph F. Zimmerman, National-State Relations: Cooperative Federalism in the Twentieth Century, 31 PUBLIUS 15 (2001).
41. For historical treatments, see, for example, Daniel Elazar, Cooperative Federalism, in COMPETITION AMONG STATE AND LOCAL GOVERNMENTS, supra, at 65;
42. and Harry N. Scheiber, American Federalism and the Diffusion of Power: Historical and Contemporary Perspectives, 9 U. TOL. L. REV. 619 (1978).
43. Weiser, Cooperative Federalism, supra note 14, at 665.
44. Robert Schapiro's theory of interactive federalism is perhaps the most significant departure from this pattern, as his concept of polyphony "accepts a substantial role for dissonance as well as harmony." Robert A Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 249 (2005) [hereinafter Schapiro, Interactive Federalism] (noting further that statefederal relations "may indeed be confrontational rather than cooperative"). Yet even Schapiro pulls back from endorsing state contestation of federal policy, noting that conflicts between state and federal regulation "present the biggest challenge for interactive federalism."
45. Robert A Schapiro, Justice Stevens's Theory of Interactive Federalism, 74 FORDHAM L. REV. 2133, 2142 (2006). Moreover, in sharp contrast to our work, Schapiro devotes scant attention to the ways in which administrative channels foster contestation, focusing instead on state court enforcement of federal rights, federal court interpretations of state constitutions, and state prosecutions of federal officials.
46. John Dwyer is the rare scholar to pay attention to those administrative channels in his excellent case study of the enforcement of the Clean Air Act. John P. Dwyer, The Practice of Federalism Under the Clean Air Act, 54 MD. L. REV. 1183 (1995). But he has not attempted to apply those insights more broadly, nor has he considered their normative and doctrinal implications. Finally, Ernest Young adverts to the power states enjoy under a cooperative federalism regime in a passing sentence while building the case for the autonomy model.
47. See Young, supra note 10, at 60.
48. Even Robert Cover, whose instinct for agonistic politics resembles our own, once argued that cooperative federalism schemes were anathema to his vision of "combative federalism." Federalism and Administrative Structure, 92 YALE L.J. 1342 (1983) (providing a published summary of a paper presented by Robert Cover at a Yale symposium).
49. For a sharp response, see Rose-Ackerman, supra note 14.
50. For those who delight in the two-by-two matrix, the following chart roughly captures how uncooperative federalism fits within the extant scholarship. We have grouped the scholarship along two dimensions. The first is normative-do you envision a state's proper role as rival/challenger or friend/ally to the federal government? The second is descriptive or tactical-what strategy do you believe facilitates healthy federal-state relations, one that emphasizes the power of the sovereign or one that emphasizes the power of the servant? Most scholarship falls in Boxes i and 4. Uncooperative federalism falls in Box 2. Interestingly, there is some work that we think properly fits into Box 3. For instance, Roderick Hills, while firmly rejecting the notion of dual sovereignty, has argued in favor of an anticommandeering rule. He favors autonomy not because it allows states to regulate separate and apart from the federal government, but because it creates the right conditions for federal-state bargaining within a cooperative (and thus integrated) federalism regime. See Roderick M. Hills, Jr., Federalism in Constitutional Context, 22 HARV. J.L. & PUB. POL'Y 181 (1998) [hereinafter Hills, Federalism in Constitutional Context] ;
51. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and 'Dual Sovereignty" Doesn't, 96 MICH. L. REV. 813, 901-906 (1998) [hereinafter Hills, Why State Autonomy Makes Sense].
52. See Amar, supra note 5.
53. See, e.g., Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001);
54. Lawrence Lessig & Cass R Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
55. The principle is termed "Dillon's Rule." 1 JOHN F. DILLON, COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS §15, at 25 (5th ed., rev., Boston, Little, Brown & Co. 1911) (1872).
56. Richard Briffault, "What About the 'Ism'?" Normative and Formal Concerns in Contemporary Federalism, 47 VAND. L. REV. 1303, 1318 (1994) [hereinafter Briffault, Normative and Formal Concerns] ;
57. see also Richard Briffault, Our Localism: Part I- The Structure of Local Government Law, 90 COLUM. L. REV. 1, 111-12 (1990) [hereinafter Briffault, Our Localism] ("If power is defined as a legally enforceable right to ... prevail in conflicts with higher levels of government, then local governments generally lack power.... But if power refers to the actual arrangements for governance at the local level, then local governments possess considerable power.... In our system, local governments often get what they want.").
58. Young, supra note 12, at 1279.
59. See, e.g., Briffault, Our Localism, supra note 22, at 17-19, 112-114
60. ELAZAR, supra note 14, at 162.
61. Other efforts to revamp the argument include JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF THE ROLE OF THE SUPREME COURT (1980) ;
62. and D. Bruce La Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States as Agents of the Nation, 60 WASH. U. L.Q. 779 (1982).
63. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1544 (1994). In many ways, Kramer's work represents the starting point for our own. But while Kramer describes the ways in which dependence empowers states to pursue their interests in a federal scheme, his work does not address the opportunities this dependence creates not just for interest-based bargaining, but also for full-out state dissent.
64. See infra text accompanying notes 123-124. Similarly, Kramer's scholarship does not offer a framework for thinking about the normative and doctrinal implications of this dynamic.
65. See, e.g., Hills, Why State Autonomy Makes Sense, supra note 18;
66. Young, supra note 10, at 35.
67. For an effort to complicate and develop this claim, see Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629, 1634-35 (2006).
68. For a thoughtful response, see PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 704-05 (5th ed. 2006), which questions whether, "given all the other ways that the federal government may affect states," the "baseline entitlement" that Hills thinks the anticommandeering rule creates is really "secure."
69. See Weiser, Cooperative Federalism, supra note 14, at 671 & n.27;
70. see also MARTHA DERTHICK, THE INFLUENCE OF FEDERAL GRANTS: PUBLIC ASSISTANCE IN MASSACHUSETTS (1970) (providing a case study of one state's administration of a federal public assistance program, and showing the many ways in which federal dependence on the state agency gave the state leverage over federal officials).
71. See SHAPIRO, supra note 5, at 123.
72. See, e.g., Dwyer, supra note 16, at 1224.
73. See, e.g., Young, supra note 10, at 13-15 (noting this phenomenon and offering his own definitions of these terms).
74. For another effort to pull apart these two ideas, see Hills, Why State Autonomy Makes Sense, supra note 18.
75. Autonomy has proved to be a slippery concept in many areas of the law. See, e.g., Richard H. Fallon, Jr., Two Senses of Autonomy, 46 STAN. L. REV. 875 (1994) (exploring different conceptions of autonomy in the First Amendment literature).
76. Richard C. Schragger, Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System, 115 YALE L.J. 2542, 2561-2562 (2006).
77. Id. at 2561 ("[T]he key element of French mayoral power ... was the dependence of central authorities on local cooperation to accomplish state ends."). Schragger is careful to note that another institutional difference may at least partly account for the power of French mayors: "[I]n France, elected officials can hold local and national political office simultaneously."
78. Id. at 2569.
79. Id. at 2561.
80. Id. at 2562-63 (citation omitted). Schragger himself is at least agnostic as to whether "a unitary state or a more 'cooperative' federal system would necessarily serve cities and their mayors better."
81. Id. at 2563;
82. see also Roderick M. Hills, Jr., Is Federalism Good for Localism? The Localist Case for Federal Regimes, 21 J.L. & POL. 187 (2005) (arguing against the view that unitary regimes empower local governments more than federalist regimes).
83. Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 283 (2000).
84. See, e.g., Roderick M. Hills, Jr., The Eleventh Amendment as Curb on Bureaucratic Power, 53 STAN. L. REV. 1225, 1227 (2001) ("The phrase is meant to suggest the image of vertical posts and horizontal slats of a picket fence, with the slats representing levels of governmentfederal, state, local -and the posts representing functional specialties of various agencies - environmental protection, worker safety, support for indigent families, health care, housing, etc. The idea behind the metaphor is that state and federal agency experts within the same specialty-the 'posts' in the 'fence' -often share more in common with each other than they do with the level of government by which they are employed.").
85. The extent to which state cultures and politics vary is a hotly debated subject. Compare, e.g., ELAZAR,supra note 14, at 10-23, 84-126,
86. with Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903, 948-49 (1994).
87. At the very least, we would expect some states to be controlled by members of the party that does not currently control Congress or the presidency. If we heed Daryl Levinson's astute reminder to pay attention to political incentives in thinking about the dynamics of federalism, see Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915, 938-46 (2005), we might expect that political party rivalries, at least, would lead Republicandominated states to challenge the programmatic choices of Democrat-controlled administrative agencies and vice versa.
88. Cf. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006) (emphasizing the importance of partisan concerns in separation-of-powers analysis). Alternatively, we might think that what some dismiss as provincialism provides a foundation for dissent.
89. DANIEL P. CARPENTER, THE FORGING OF BUREAUCRATIC AUTONOMY: REPUTATIONS, NETWORKS, AND POLICY INNOVATION IN EXECUTIVE AGENCIES, 1862-1928, at 15 (2001).
90. See, e.g., Hills, Federalism in Constitutional Context, supra note 18, at 191-192 (arguing that state officials administering a cooperative regime have a separate source of funds and incentives to challenge federal officials).
91. See id.;
92. cf. Briffault, Normative and Formal Concerns, supra note 22, at 1349 ("[A]lthough the states are, for the most part, too large to provide real participatory democracy, they are more capable than local governments of being viable power centers.").
93. SHAPIRO, supra note 5.
94. One might think that "licensed dissent" is a contradiction in terms, or at least that it cannot serve as an example of uncooperative federalism. If the federal government has authorized the states to experiment, are states really contesting anything? And how does licensed dissent differ from the autonomy model? We reject the notion that state actions cannot constitute dissent if they are licensed. After all, in the rights context, we do not think that the protection afforded by the First Amendment converts dissenting speech into something else. As long as the state takes the authorization to experiment in an unexpected direction, we think it can be fairly deemed a challenge. Nor is licensed dissent the same as autonomy. As noted earlier, see supra text accompanying note 32, microspheres of autonomy that expand and contract with the master's will are quite different from the type of autonomy contemplated by proponents of state-centered dissent.
95. For much of this analysis, we talk about states as unitary, even monolithic, entities when of course they are not. Cf. Kenneth A. Shepsle, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 INT'LREV. L. &ECON. 239 (1992);
96. Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. CONTEMP. LEGAL ISSUES 549 (2005). State executives may disagree with state legislators, who may in turn disagree with one another and with state bureaucrats, and so forth. We speak of states as unitary bodies (with intentions, no less) largely for ease of exposition, but we should note that ascribing various state officials' actions to the state itself highlights that many different actors can speak on behalf of the state. This diversity generates more channels for state dissent against federal policy and may be particularly important in the context of what we call the "administrative safeguards of federalism," where the state "administrators" of federal policy include not just bureaucrats, but legislators and executives as well. Indeed, in the case studies offered here, we see examples of executive, legislative, and bureaucratic action.
97. Much as classic instances of civil disobedience are undertaken not to exempt the actor from a certain government policy but to alter government policy, see ENCYCLOPEDIA OF DEMOCRATIC THOUGHT 60 (Paul Barry Clarke & Joe Foweraker eds., 2001) (defining civil disobedience as "the purposeful and public defiance of an established law or norm, undertaken with the intent of altering state policy"), a state's attempt to change federal policy seems importantly different from more limited efforts to carve out a unique policy within its own borders. But a request for an exemption may be premised on the idea that the national government lacks the authority to regulate or that a national norm should not exist. Imagine, for instance, an effort by Southern states to be granted an exemption from federal desegregation laws that were so bound up with claims about national identity that an exception would be tantamount to challenging the national policy. Such a request, in our view, would fairly count as dissent. A request that state officers enforcing federal regulations drive around in blue cars rather than red ones, in sharp contrast, would obviously fall outside the ambit of uncooperative federalism.
98. See King v. Smith, 392 U.S. 309, 316 (1968).
99. U.S.C. 42 §1315(a) (2000).
100. U.S. GEN. ACCOUNTING OFFICE, WELFARE REFORM: STATES' EARLY EXPERIENCES WITH BENEFIT TERMINATION 3 (1997), available at http://www.gao.gov/archive/1997/ he97074.pdf.
101. Of course, the states did not derive this new conception of welfare out of thin air. Many conservative thinkers and policymakers in the 1980s argued that welfare should not be an entitlement but should be connected to work requirements. See, e.g., LAWRENCE M. MEAD, BEYOND ENTITLEMENT: THE SOCIAL OBLIGATIONS OF CITIZENSHIP 218, 240 (1986) (advocating a "civic conception" that required "linking welfare benefits to obligations like work");
102. CHARLES MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY, 1950-1980 (1984) (arguing that existing welfare programs disserved the interests of poor racial minorities by rewarding self-defeating behavior).
103. Patty Edmonds, Staes Turn Values Rhetoric into Legislative .Action, USA TODAY, Aug. 8, 1996, at 7A (quoting Wisconsin Governor Tommy Thompson).
104. See Jason DeParle, U.S. Authorizes Wisconsin Curb on Aid to Poor, N.Y. TIMES, NOV. 2, 1993, at Ai. The state also attempted to reshape welfare recipients' social behavior: among other programs, "Learnfare" reduced grants for families with truant children, and "Bridefare" increased benefits for women who married the fathers of their children, while a family cap program withheld increases in benefits for children born after a family had entered the AFDC program.
105. See Susan Bennett & Kathleen A Sullivan, Disentitling the Poor: Waivers and Welfare "Reform," 26 U. MICH. J.L. REFORM 741, 755-56 nn.62-64 (1993);
106. Thomas Kaplan, Wisconsin's W-2 Program: Welfare as We Might Come To Know It?, in LEARNING FROM LEADERS: WELFARE REFORM POLITICS AND POLICY IN FIVE MIDWESTERN STATES 77, 86-88 (Carol S. Weissen ed., 2000).
107. As Governor John Engler explained, the state's AFDC recipients were required to "sign a Social Contract that committed them to either working, engaging in job training or volunteering in the community at least 20 hours per week." Block Grants and Opportunities for Devolution: Hearing on the Concurrent Resolution on the Budget fir the Fiscal Year 1996 Before the S. Comm. on the Budget, 104th Cong. 10 (1995) [hereinafter Block Grants Hearing] (statement of Michigan Governor John Engler), available at http://www.archive. org/stream/ concurrentresoluo4unit.
108. Edmonds, supra note 51 (quoting Governor Tommy Thompson).
109. Gary Wills, The War Between the States ... and Washington, N.Y. TIMES, July 5, 1998, (Magazine), at 27.
110. Block Grants Hearing, supra note 53, at 13, 18 (statement of Governor John Engler).
111. See generally David A Super, The Quiet "Welfare" Revolution: Resurrecting the Food Stamp Program in the Wake of the 1996 Welfare Law, 79 N.Y.U. L. REV. 1271, 1273 (2004) ("Publicbenefits law has long been a complex fusion of expressive and functional elements. When a broad swath of policymakers and the general public focus on public benefits, they tend to set policy in order to make symbolic statements about their vision of a moral society.").
112. See, e.g., Lawrence M. Mead, The Culture of Welfare Reform, PUB. INT., Winter 2004, at 99, 99 ("Most people know that the state of Wisconsin led the nation in reforming welfare ....").
113. U.S.C. 42 §604(2000).
114. 60. See, e.g., Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.§§ 1201-1328;
115. Clean Water Act, 33 U.S.C. §§ 1251-1387;
116. Clean Air Act, 42 U.S.C. §§ 7401-7642.
117. U.S.C. 42 §§ 7409-7410
118. See Dwyer, supra note 16.
119. Id. at 1216.
120. For example, states resisted the Clean Air Act's requirement that they create inspection and maintenance programs to monitor emissions. Several states initially refused to submit inspection and maintenance plans, while others promulgated ineffective programs, and still others later refused to amend their programs to comply with federal standards. See McGarity, supra note 2, at 1556-61. Although the states plainly were exercising their regulatory discretion in a manner that thwarted the federal requirement, the EPA never assumed responsibility for implementation and, in the end, caved to the states' demands. It permitted California to run a test-and-repair program despite its initial insistence that centralized test-only centers were the sole option. When other states clamored for the same treatment, the EPA allowed any state to use this hybrid approach.
121. Id. at 1623-24;
122. see also id. at 1579 (describing state confrontations with the EPA as a "rout" and noting that the "EPA backed down from virtually every confrontation with state officials").
123. Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. REV. (forthcoming 2009) (manuscript at 12, on file with authors).
124. U.S.C. 42 § 7543(b)(1)(B).
125. H.R REP. NO.90-728, at 1957 (1967), reprinted in 1967 U.S.C.C.A.N. 1938, 1958.
126. They are permitted to do so under 42 U.S.C. § 7543(e)(2)(B). In addition, California's regulations achieve the status of federal law for certain purposes. See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 347 (D. Vt. 2007) (noting that a California emissions standard "becomes a motor vehicle standard of the government, with the same stature as a federal regulation" vis-à-vis other federal law);
127. see also Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1172 (E.D. Cal. 2007) (same).
128. See Carlson, supra note 65 (manuscript at 18-19). Carlson describes a process of "iterative federalism," in which the super-regulator state and the federal government spur each other.
129. See id. (manuscript at 12).
130. See CAL. HEALTH & SAFETY CODE § 43018.5 (West 2006). As the secretary of the state environmental protection agency remarked at the signing of the bill, "The Gray Davis administration is leading the way for the country because Washington, D. C., has failed to lead." California Mandates Cleaner Cars by 2009, ETHICS NEWSLINE, July 29, 2002, http://www.globalethics. org/newsline/2002/07/29/california-mandates-cleaner-cars-by2009.
131. See Notice of Decision Denying Waiver, 73 Fed. Reg. 12, 156 (Mar. 6, 2008);
132. Letter from Stephen L. Johnson, EPA Adm'r, to Governor Schwarzenegger (Dec. 19, 2007) (on file with authors) (noting that climate change "is not exclusive or unique to California").
133. Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No.107-56, 115 Stat. 272 (codified in scattered sections of 8, 12, 18, 21, 22, 28, 31, 47, and 50 U.S.C).
134. See Bill of Rights Defense Committee, Resolutions Passed and Efforts Underway, http://www.bordc.org/list.php (last visited Mar. 31, 2009) (compiling more than four hundred state and local resolutions).
135. Legis. Resolve 27, 23d Leg., ist Sess., 2003 Alaska Sess. Laws at LR 27.
136. Id.
137. S.J. Res. 05-044, 65th Gen. Assem., ist Reg. Sess., 2005 Colo. Sess. Laws 2362;
138. S.J. Res. No.19, 59th Leg., Reg. Sess., 2005 Mont. Laws 3042.
139. S.J. Res. 10, 2005-2006 Reg. Sess. (Cal. 2006), available at http://info.sen.ca.gov/pub/05-06/bill/sen/sb-0001-0050/sjr-10-bill-20060221- chaptered.pdf;
140. S. Con. Res. 18, 22d Leg., Reg. Sess. (Haw. 2003), http://www.capitol. hawaii.gov/session2003/bills/scr18-.htm.
141. See Ann Althouse, The Vigor of Anti-Commandeering Doctrine in Times of Terror, 69 BROOK. L. REV. 1231, 1233 (2004) ("These local laws acknowledge federal supremacy in the form of the Constitution, but express independence in articulating the context and extent of constitutional rights and assert that the current federal anti-terrorism efforts violate these rights so defined.").
142. Alaska Legis. Resolve 27.
143. American Civil Liberties Union, State of Maine Resolution (Mar. 23, 2004), available at http://www.aclu.org/safefree/resources/17492res20040323.html (providing the text of H. Paper 1433, 121st Leg., 2d Spec. Sess. (Me. 2004), which recognizes that "the Constitution of the United States is our charter of liberty and that the Bill of Rights enshrines the fundamental and inalienable rights of Americans, including the freedoms of religion, speech, assembly and privacy"); Cal. S.J. Res. 10; Mont. S.J. Res. No.19.
144. Alaska Legis. Resolve 27;
145. Cal. S.J. Res. 10;
146. Colo. S.J. Res. 05-044;
147. Me. H. Paper 1433;
148. Mont. S.J. Res. No.19.
149. See, e.g., Alaska Legis. Resolve 27 ("[T]he Alaska State Legislature implores the United States Congress to correct provisions in the USA PATRIOT Act and other measures that infringe on civil liberties, and opposes any pending and future federal legislation to the extent that it infringes on Americans' civil rights and liberties.").
150. See, e.g., Bill Analysis of S.J. Res. 10, Sen. Floor (Cal. 2006), http ://www.leginfo.ca.gov/pub/05-06/bill/sen/sb-0001- 0050/sjr-io-cfa-20060209- 112154-sen-floor.html ("As the United States Congress considers sections of the Act scheduled to sunset December 31, 2005, as well as new proposals that may further diminish civil rights and judicial oversight, it is critical that California join with other states and hundreds of communities in opposition to any pending or further federal legislation to the extent that it infringes on America's civil rights and liberties.").
151. Compare U.S. Department of Justice, Office of Justice Programs Bureau of Justice Statistics, Federal Law Enforcement Statistics: Summary Findings, http://www.ojp.usdoj.gov/ bjs/fedle.htm (last visited Mar. 31, 2009),
152. with U.S. Department of Justice, Office of Justice Programs Bureau of Justice Statistics, State and Local Law Enforcement Statistics: Summary Findings, http://www.ojp.usdoj.gov/bjs/sandlle.htm (last visited Mar. 31, 2009).
153. That the states are dissenting has not been lost on supporters of the Patriot Act. During discussion of the Alaska resolution, for instance, one proponent expressed his disbelief "that responsible legislators would advocate the civil disobedience of not following federal legislation." Comm. Minutes, Alaska H. State Affairs Standing Comm. (2003) (statement of Graham Storey), available at http://www.legis.state.ak.us/basis/get-single- minute.asp ?session=23&end-line=02011&tim e=0806&date= 20030506&comm=STA&house=H. Unfortunately, it is nearly impossible to measure how successful state efforts have been. A primary criticism leveled at the Patriot Act is that its enforcement is shrouded in secrecy.
154. See H.R REP. NO.109-174, pt. 1, at 451, 469 (2005) ("The PATRIOT Act keeps secret, even from Congress, how many of the powers are being used, prohibits recipients of search orders from disclosing they even received such an order, including to their attorney, and allows the government to secretly search people's homes and seize their property."). This secrecy malees it difficult to know how, if at all, state resistance has thwarted or modified the Act's implementation. It is clear that the states did not succeed in their ultimate goal: the Act has been reauthorized, with many of the contested provisions now established as permanent law.
155. At a minimum, however, state resolutions helped shape the national conversation. During reauthorization hearings, opponents frequently cited state and local resolutions. E.g., 151 CONG. REC. H6228 (daily ed. July 21, 2005) (statement of Rep. Jackson-Lee) ;
156. id. at H6243 (statement of Rep. Udall);
157. CONG. 151 REC. 813, 709 (daily ed. Dec. 16, 2005) (statement of Sen. Kennedy).
158. Senator Feingold read each state resolution into the record. 152 CONG. REC. S1569-73 (daily ed. Mar. 1, 2006) (statement of Sen. Feingold).
159. See U.S. Immigration & Customs Enforcement, Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act, http://www.ice.gov/ partners/287g/Section287-g.htm (last visited Mar. 31, 2009) (discussing a federal program under section 287(g) of the Immigration and Nationality Act that provides for state enforcement of immigration law and listing participating states);
160. see also Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57 (proposing a greater role for the states in administering and enforcing immigration law).
161. See Legal Arizona Workers Act, ARIZ. REV. STAT. ANN. §§ 23-211 to -214 (2004 & Supp. 2008);
162. Act of Apr. 17, 2006, no.457, 2006 Ga. Laws 105;
163. Oklahoma Taxpayer and Citizen Protection Act, ch. 112, §§ 7, 9, 2007 Olda. Sess. Laws 545.
164. See, e.g., OR. REV. STAT. § 181.850 (2007) (providing that no Oregon law enforcement agency "shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws");
165. Legis. Resolve 27, 23d Leg., ist Sess., 2003 Alaska Sess. Laws at LR 27 (same);
166. S.J. Res. No.19, 59th Leg., Reg. Sess., 2005 Mont. Laws 3042 (same);
167. see also Exec. Order No. 2005-019 (N.M. 2005), available at http://www.governor.state.nm.us/orders/2005/EO-2005-019.pdf (ordering that state officers shall not inquire about a victim or witness's immigration status and shall not generally ask about a person's immigration status solely to determine whether there has been a violation of federal civil immigration law).
168. See generally Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008) ;
169. Schuck, supra note 86 ;
170. Peter H. Schuck & John Williams, Removing Criminal Aliens: The Pitfalls and Promises of Federalism, 22 HARV. J.L. & PUB. POL'Y 367 (1999);
171. National Immigration Law Center, Laws, Resolutions, and Policies Instituted Across the U.S. Limiting Enforcement of Immigration Laws by State and Local Authorities, http://www.nilc.org/immlawpolicy/LocalLaw/locallaw-limiting- tbl-2008-12-03.pdf.
172. See ELICIA J. HERZ ET AL., STATE CHILDREN'S HEALTH INSURANCE PROGRAM (SCHIP): A BRIEF OVERVIEW, at CRS-4 to CRS-9 (2008), available at http://ccf.georgetown.edu/index/ cms-filesystem-action?file= research%2Fabout+medicaid%2Fschip+overview+3-12-08.pdf.
173. See 33 U.S.C. § 1341 (2000);
174. see, e.g., David H. Becker, The Challenges of Dam Removal: The History and Lessons of the Condit Dam and Potential Threats from the 2005 Federal Power Act Amendments, 36 ENVTL. L. 811, 822 (2006).
175. See MARTHA DERTHICK, AGENCY UNDER STRESS : THE SOCIAL SECURITY ADMINISTRATION IN AMERICAN GOVERNMENT 37-46 (1990).
176. See National Education Association, Growing Chorus of Voices Calling for Changes in NCLB: State Legislative Activity, http://sites.nea.org/esea/chorus1. html#state (last visited Mar. 31, 2009).
177. We are grateful to Peter Schuck for this example. The REAL ID Act is codified at 49 U.S.C. § 30, 301 (Supp. V 2005). Eleven states have passed statutes prohibiting implementation of the Act, and an additional nine states have passed resolutions denouncing it. For an overview of state responses, see Status of Anti-Real ID Legislation in the States, http://www.realnightmare.org/ news/105 (last visited Mar. 31, 2009) (compiling state legislation).
178. See 21 U.S.C. §§ 812(b)(1)(A)-(C), 841.
179. These states are Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont, and Washington. In addition, Maryland allows a medical use defense in court. See MARIJUANA POLICY PROJECT, STATE-BY-STATE MEDICAL MARIJUANA LAWS 5-6, 11, 14 tbl.1 (2008), available at http://www.mpp.org/assets/pdfs/download-materials/SBSR-NOV2008.pdf.
180. California's law is the most explicit. See CAL. HEALTH & SAFETY CODE S 11362.5 (West 2007) ("The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: ... To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.").
181. For instance, Congress has rejected proposals to increase federal enforcement resources in states with decriminalization laws. See Michael M. O'Hear, Federalism and Drug Control, 57 VAND. L. REV. 783, 841 (2004).
182. In response to California's Proposition 215, for instance, the Office of National Drug Control Policy stated its position that a doctor's recommendation of marijuana would "lead to administrative action by the Drug Enforcement Administration (DBA) to revoke the practitioner's registration." Office of Nat'l Drug Control Policy, Notice, Administration Response to Arizona Proposition 200 and California Proposition 215, 62 Fed. Reg. 6164, 6164 (Feb. 11, 1997).
183. The Ninth Circuit upheld a permanent injunction against the policy on First Amendment grounds, with Judge Kozinski's concurrence arguing that it transgressed commandeering doctrine. Conant v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring) ("In effect, the federal government is forcing the state to keep medical marijuana illegal.").
184. More forcefully, the DBA has targeted California dispensaries with several high-profile prosecutions. See United States v. Rosenthal, 266 F. Supp. 2d 1068 (N.D. Cal. 2003), off d in part and rev'd in part, 454 F.3d 943 (9th Cir. 2006);
185. United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086 (N.D. Cal. 1998);
186. Charlie LeDuff & Adam Liptak, Defiant California City Hands Out Marijuana, N.Y. TIMES, Sept. 18, 2002, at A22 (stating that California "has become the target of Bush administration efforts to crack down on the cultivation and distribution of [marijuana]" because "big raids in California are more likely to receive national attention").
187. In turn, California legislators have introduced a bill that would prevent state and local officers from assisting federal agents in carrying out federal drug policy that is contrary to state law. AB. 2743, 2007-2008 Assem., Reg. Sess. (Cal. 2008), available at http://www.leginfo.ca.gov/pub/07-08/bill/asm/ab- 27012750/ab-2743-bill-20080523-amended-asm-V97.pdf.
188. Despite the Supreme Court's holdings that Congress has Commerce Clause authority to regulate medical marijuana, Gonzales v. Raich, 545 U.S. 1 (2005), and that state law is not a legal defense to a federal prosecution, United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001), state decriminalization laws remain on the books. In fact, the day after Raich was handed down, Rhode Island passed its medical marijuana law, and New Mexico followed suit soon thereafter.
189. See MARIJUANA POLICY PROJECT, supra note 95, at 5-6, 16-17.
190. MARIJUANA POLICY PROJECT, supra note 95, at 8;
191. O'Hear, supra note 97, at 810-12;
192. see Conant, 309 F.3d at 645 n.10 (Kozinski, J., concurring) ("[F]ederal officials .... explained that federal drug policies rely heavily on the states' enforcement of their own drug laws to achieve federal objectives.").
193. See O'Hear, supra note 97, at 818-20. The federal government also offers states grant money "for the purpose of enforcing State and local laws that establish offenses similar to offenses established in the Controlled Substances Act," effectively bribing the states to implement federal policy. 42 U.S.C. § 3751(b) (2000).
194. O'Hear, supra note 97, at 806.
195. We use the phrase "political safeguards of federalism" to refer, specifically, to the nominally political parts of the lawmaking process-for example, the interactions between state and federal party officials and the lobbying states do in Washington. Larry Kramer, in his wellknown reformulation of the "political safeguards" argument, groups what we term the "administrative safeguards of federalism" under the larger rubric of the political safeguards of federalism. For our take on Kramer's scheme, see infra text accompanying notes 123-124. Gillian Metzger has offered a markedly different vision of the relationship between administrative law and federalism. Rather than focus on the ways in which federal-state integration reproduces the dynamics of federalism within the Fourth Branch, she argues that federal administrative agencies can and should take into account the values of federalism (particularly the need to preserve the states' independent regulatory power) in administering federal law. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023 (2008).
196. For responses, see Stuart M. Benjamin & Ernest A Young, Tennis with the Net Down: Administrative Federalism Without Congress, 57 DUKE L.J. 2111 (2008) ;
197. and Brian Galle & Mark Scidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933 (2008).
198. See supra note 45.
199. As Larry Kramer observes, "Because the federal government depends on state administrators to oversee or implement so many of its programs, states have been able to use their position in the administrative system to protect state institutional interests in Congress." Kramer, supra note 37, at 283.
200. For more on the distinction between the political safeguards of federalism and the administrative safeguards of federalism, see infra text accompanying notes 123-124.
201. See, e.g., Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314 (2006);
202. Neal Kumar Katyal, Toward Internal Separation of Powers, 116 YALE L.J. POCKET PART 106 (2006), http://thepocketpart.org/2006/10/26/lcatyal.html.
203. For responses, see Eric A Posner & Adrian Vermeule, The Credible Executive, 74 U. CHI. L. REV. 865 (2007);
204. William G. Howell, Political Checks on a Politicized Presidency: A Response to Neal Katyal's "Internal Separation of Powers," 116 YALE L.J. POCKET PART 111 (2006), http://thepocketpart.org/2006/ 10/26/howell.html;
205. M. Elizabeth Magill, Can Process Cure Substance? A Response to Neal Katyal's "Internal Separation of Powers," 116 YALE L.J. POCKET PART 126 (2006), http://thepockerpart.org/2006/11/2/magill.html;
206. and Christopher S. Yoo, Can Interagency Dialogue Serve as the New Separation of Powers?, 116 YALE L.J. POCKET PART 131 (2006), http://thepocketpart.0rg/2006/11/2/yoo.html.
207. As one of us has noted, however, state officials who put in place a real-life policy should still have an agenda-setting advantage when compared to conventional dissenters, who can only describe that policy in the abstract. Heather K. Gerken, Dissenting by Deciding, 57 STAN. L. REV. 1745, 1762-64 (2005).
208. States, of course, are never complete outsiders to a federal system. Nonetheless, in this context they are at least outsiders to the regulatory regime they are criticizing.
209. MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM 61 (1987);
210. see also id. at 55 ("Opposition, far more than detachment, is what determines the shape of social criticism.").
211. Id. at 39.
212. Heather K. Gerken, Of Sovereigns and Servants, 115 YALE L.J. 2633, 2641 (2006).
213. See infra Section III.A
214. 505 U.S. 144, 168-69 (1992);
215. see Printz v. United States, 521 U.S. 898, 929-30 (1997).
216. See, e.g., BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER: WHY DEMOCRACIES CHOOSE BAD POLICIES (2007);
217. SAMUEL L. POPKIN, THE REASONING VOTER: COMMUNICATION AND PERSUASION IN PRESIDENTIAL CAMPAIGNS (1991);
218. Edward Rubin, The Myth of Accountability and the Anti-Administrative Impulse, 103 MICH. L. REV. 2073, 2079-80, 2086-87 (2005).
219. For an intelligent summary of the political science literature on this point, which dates back at least to V.O. Key, see David Schleicher, Irrational Voters, Rational Voting, 7 ELECTION L.J. 149, 153, 155-157 (2008) (reviewing CAPLAN, supra note 115).
220. Siegel, supra note 28, at 1632.
221. Jerry L. Mashaw, Structuring a "Dense Complexity": Accountability and the Project of Administrative Law, ISSUES IN LEGAL SCHOLARSHIP, Mar. 2005, art. 4, at 6-7, http://www.bepress.com/ils/iss6/art4/.
222. Joint regulation, of course, also casts state policymakers -that is, legislators and members of the executive branch-in the role of the bureaucrats. It is an open question whether the professional networks that typically develop among bureaucrats with similar training and backgrounds would extend to state politicians. Nonetheless, at the very least we would expect the repeated contacts fostered by an integrated regulatory scheme to help these state officials challenge federal administrators.
223. See Printz v. United States, 521 U.S. 898, 957 n.18 (1997) (Stevens, J., dissenting) ("[T]o the extent that a particular action proves politically unpopular, we may be confident that elected officials charged with implementing it will be quite clear to their constituents where the source of the misfortune lies."); Siegel, supra note 28, at 1633.
224. See infra Section III.A
225. Young, supra note 12, at 1285.
226. We are indebted to Daryl Levinson for helping us think through these questions.
227. See Kramer, supra note 37;
228. Kramer, supra note 27.
229. Gerken, supra note 108;
230. see also William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes (2008) (unpublished manuscript, on file with authors) (arguing that the ability to put in place a program has an important effect on debates about national policy).
231. Cf. Eskridge & Ferejohn, supra note 125 (emphasizing the special role that administrative agencies play in ongoing debates about national policy).
232. Federalism debates get worked out in many fora, of course, not just in the courts. Given that courts are an important referee in this area and given that doctrine is the lingua franca of the academic audience we are addressing, we think the focus on courts is warranted here.
233. Printz v. United States, 521 U.S. 898, 933 (1997) (quoting New York v. United States, 505 U.S. 144, 188 (1992)).
234. Cox, supra note 11, at 1330;
235. see Althouse, supra note 78;
236. Young, supra note 12.
237. See New York, 505 U.S. at 168.
238. See Hills, Why State Autonomy Makes Sense, supra note 18, at 906-15;
239. Young, supra note 12, at 1295-1301.
240. See, e.g., Printz, 521 U.S. at 918 ("It is incontestable that the Constitution established a system of'dual sovereignty.'"); id. at 932 (noting that commandeering would "compromise the structural framework of dual sovereignty"); New York, 505 U.S. at 162-63;
241. Young, supra note 12, at 1297.
242. New York, 505 U.S. at 178.
243. Printz, 521 U.S. at 945 (Stevens, J., dissenting); see id. at 976-77 (Breyer, J., dissenting) (arguing that the European Union, Germany, and Switzerland allow for commandeering "in part because they believe that such a system interferes less, not more, with the independent authority of the 'state,' member nation, or other subsidiary government, and helps to safeguard individual liberty as well");
244. Siegel, supra note 28, at 1634.
245. For an insightful account of commandeering across the Atlantic that critiques Justice Breyer's description, see Daniel Halberstam, Comparative Federalism and the Issue of Commandeering, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 213 (Kalypso Nicolaïdis & Robert Howse eds., 2001).
246. For discussions reaching different conclusions about the relative merits of commandeering and preemption, see, for example, Matthew D. Adler & Seth F. Kreimer, The New Etiquette of Federalism: New York, Printz, and Yeskey, 1998 SUP. CT. REV. 71, which argues that there is not a clear difference between preemption and commandeering with respect to the values of federalism;
247. and Hills, Why State Autonomy Makes Sense, supra note 18, at 900, which states that "preemption is generally less harmful to useful state and local political activity than commandeering legislation."
248. Id. (emphasis omitted).
249. Outright noncompliance might seem to bring us full circle to anticommandeering doctrine, but state action may have a different valence depending on whether commandeering is permitted. Much as civil disobedience gains its oppositional power from the defiance of established law in an effort to change it, a state's refusal to implement a federal mandate when it does not have permission to refuse registers more powerfully as dissent than its licensed opting out on federalism grounds, as we discuss below.
250. See supra note 93 and accompanying text.
251. Althouse, supra note 78, at 1261. Ann Althouse notes that this "less judgmental" disengagement "discourages some vigorous debate about the meaning of constitutional rights."
252. Id. at 1261.
253. Printz, 521 U.S. at 905.
254. 139- See Hills, Why State Autonomy Makes Sense, supra note 18, at 906-15;
255. Young, supra note 12, at 1295-1301.
256. See, e.g., Hills, Why State Autonomy Makes Sense, supra note 18, at 911 ("It is difficult to see how [states can legislate on behalf of the federal government] without compromising their ability to lead a rhetorically effective opposition to such policies.");
257. Young, supra note 12, at 1301 ("Commandeering ... undermin[es] the ability of state and local governments to articulate a different point of view.").
258. Cf. Evan H. Caminker, State Sovereignty and Subordinacy: May Congress Commandeer State Officers To Implement Federal Law?, 95 COLUM. L. REV. 1001, 1076 (1995) ("[S]tate officials arguably have greater incentive to protest publicly against federal incursions that come in the form of commandeering statutes than those that are federally enforced and financed.").
259. See, e.g., Hills, Why State Autonomy Makes Sense, supra note 18, at 907.
260. HIRSCHMAN, supra note 4;
261. Weiser, Cooperative Federalism, supra note 14, at 704-707 (applying Hirschman's framework to federal-state, as well as state-state, relationships).
262. See Hills, Federalism in Constitutional Context, supra note 18 (suggesting that competition between federal and nonfederal officials for implementation authority ensures faithful execution of the laws, and arguing that state and local officials are only able to compete productively with the President and federal bureaucracy because of the anticommandeering doctrine). We thank Ernest Young for pressing us on this point.
263. See, e.g., South Dakota v. Dole, 483 U.S. 203 (1987).
264. For a sampling of the literature on conditional spending and its relationship to the values of federalism, see, for example, Lynn A Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911 (1995);
265. Lynn A. Baker & Mitchell N. Berman, Getting off the Dole: Why the Court Should Abandon Its Spending Doctrine, and How a Too-Clever Congress Could Provoke It To Do So, 78 IND. L.J. 459 (2003), which criticizes the Dole test and proposes possible alternatives;
266. and Siegel, supra note 28, at 1655-1658, which compares conditional spending and commandeering.
267. See, e.g., RICHARD A. EPSTEIN, BARGAINING WITH THE STATE 152 (1993);
268. Adler & Kreimer, supra note 134, at 106;
269. Lynn A. Baker, The Spending Power and the Federalist Revival, 4 CHAP. L. REV. 195, 196-97 (2001);
270. Thomas R McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 SUP. CT. REV. 85, 85-87.
271. For an argument defining the conditions in which a state is likely to be "locked in" to a program once created and thus unable to refuse federal funds going forward, see David Freeman Engstrom, Drawing Lines Between Chevron and Pennhurst: A Functional Analysis of the Spending Power, Federalism, and the Administrative State, 82 TEX. L. REV. 1197 (2004).
272. 147- See, e.g., Brian Galle, Federal Grants, State Decisions, 88 B.U. L. REV. 875, 930 (2008);
273. Hills, Why State Autonomy Makes Sense, supra note 18, at 862.
274. Hills notes, for instance, that more than half of the states declined OSHA funds and that Arizona initially opted out of Medicaid.
275. Hills, Why State Autonomy Makes Sense, supra note 18, at 862-863
276. Roderick Hills would likely take the opposite position. In his view, state officials' independence from federal mandates depends on the anticommandeering doarine. He worries that, without Printz, "[g]overnors, mayors and other political generalists would be the titular heads of the non-federal agencies, but, in practical effect, they would lose control over these institutions," resulting in '"picket fence federalism.'" Hills, Federalism in Constitutional Context, supra note 18, at 192;
277. see also Hills, supra note 38, at 1227 (defining "picket fence federalism"). The key question is which way the picket fence argument cuts. As Larry Kramer observes, "bureaucratic specialization may foster close cooperation among experts at the state and federal level ... in a way that undermines the power of elected officials at both levels."
278. Kramer, supra note 37, at 284 n.269 (emphasis added). Thus, even if picket fence federalism pulls power away from eleaed officials, it might reduce the power of state elected officials, as Hills suggests, or it might reduce the power of both federal and state elected officials. If the latter is more often the case, then we would want to know precisely how picket fence federalism affects the tug-of-war between state and federal bureaucrats -does it pull state officials fully into the federal orbit, or are state officials able to use professional ties to bring federal bureaucrats closer to their preferred position?
279. Of course, this argument, too, relies on empirical assumptions. For instance, states that turn down federal funds may still regret the lost funds and thus push to participate in the federal program on their own terms. If so, they may not shut up once they opt out. Rather, they may continue to dissent in the hopes that they will be able to change the program to their satisfaction. And if federal decisionmakers place a premium on 100% participation, they may well be willing to engage states that initially turned down the funds. This bargaining could look quite different from the failed ex ante bargaining that resulted in states opting out. At this point, a dissenting state will have established the seriousness of its opposition by putting its money where its mouth is, and both state and federal actors will be able to point to the program's implementation in participating states to concretize the debate. If federal- state interactions tend to take this path, conditional spending offers an additional forum for uncooperative federalism. For the reasons outlined in the text, our best guess is still that commandeering would lead to more robust dissent than conditional spending, but even if conditional spending equally spurs uncooperative federalism, a strong proponent of uncooperative federalism might prefer commandeering on the ground that conditional spending will push states to couch their dissenting views as funding discussions rather than challenges on the merits, thereby blurring the line between dissenting and bargaining and making contestation less visible. We are grateful to Donald Elliot for pushing us on this point.
280. See Federalism and Administrative Structure, supra note 17, at 1343 (noting that cooperative spending programs may "co-opt" state opposition).
281. For an essay casting doubt on this idea, see Rose-Ackerman, supra note 14, at 1347-1348
282. An important debate has emerged concerning the power of federal agencies to preempt state law. See, e.g., Symposium, Ordering State-Federal Relations Through Federal Preemption Doctrine, 102 Nw. U. L. REV. 503 (2008). Although this debate raises an interesting set of questions, for the purposes of our brief discussion, we lump together federal congressional and agency action.
283. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
284. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000).
285. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992).
286. United States v. Locke, 529 U.S. 89 (2000).
287. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004).
288. Chamber of Commerce v. Brown, 128 S. Ct. 2408 (2008).
289. E.g., Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. REV. 967, 968 (2002). The Court's readiness to find state law preempted also shapes express preemption doctrine, making it more likely to read preemption clauses broadly.
290. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 9, 67-68 (2007).
291. In fact, one could easily be forgiven for believing the doctrine has no proponents. For a sample of the critiques, see Erwin Chemerinsky, Empowering States When It Matters: A Different Approach to Preemption, 69 BROOK. L. REV. 1313 (2004);
292. Stephen A Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994);
293. Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000);
294. Schapiro, Interactive Federalism, supra note 16;
295. and Young, supra note 10.
296. Ernest A. Young, Two Cheers for Process Federalism, 46 VILL. L. REV. 1349, 1385 (2001).
297. One might also worry, as does Susan Rose-Ackerman, that federal preemption can "reduce the financial and political resources at the disposal of state governments" and result in "weaker and hence less combative governments." Rose-Ackerman, supra note 14, at 1346.
298. For one doctrinal fix, see Hills, supra note 158, at 54-68, which argues for a Chevron-style default rule of deference to state governments acting against a backdrop of ambiguous federal law.
299. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). In at least one case, the Court has invoked the presumption against preemption as a general rule of construction, although it went on to note that this presumption applied "particularly" in cases involving historic state police powers. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
300. 21 U.S.C.§ 903 (2000).
301. See id. §§ 802(21), 823(f).
302. 546 U.S. 243 (2006).
303. Id. at 270 (quoting Medtronic, 518 U.S. at 475).
304. Id.
305. Id. at 249 (quoting Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).
306. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (finding preemption despite the federal statute's saving clause that explicitly preserved state common law causes of aaion).
307. Cf. Hills, supra note 158, at 4 ("[A] presumption against federal preemption of state law makes sense ... because state regulation makes Congress a more honest and democratically accountable regulator of conduct throughout the nation. To reverse the usual formula, national values are well protected by the states' political process.").
308. This is not to say that casting state law as having a different purpose from federal law is necessarily effective. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 105-106 (1992) (noting that state law cannot avoid preemption simply because it serves a different objective from federal law).
309. Id.
310. The district court apparently thought the latter and therefore held that the state statute was not preempted, but the Supreme Court reversed. See supra note 172.
311. 175- 539 U.S. 396 (2003).
312. 530 U.S. 363 (2000).
313. While the Garamendi dissent seemed to regard California's disclosure law as a response to inaction at the national level, see 539 U.S. at 430 (Ginsburg, J., dissenting), it nonetheless stressed the fact that the California law concerned disclosure, rather than litigation, and therefore occupied a distinct space from federal law,
314. id. at 441.
315. 533 U.S. 525 (2001). Massachusetts argued that Congress was addressing concerns about smoking and health, while it was addressing the prevalence of underage smoking.
316. Id. at 548. The state also argued that its law was not preempted because it governed the location, rather than the content, of the advertising.
317. Id. at 594-597 (Stevens, J., dissenting). Thus, in attempting to make a colorable claim that state regulation was not preempted, Massachusetts denied the existence of dialogue between its own policy and the federal regulation.
318. 179- For a good example of this sort of contextual analysis, see Siegel, supra note 28.
319. See, e.g., Bruce Ackerman & James Sawyer, The Uncertain Search for Environmental Policy: Scientific Factfinding and Rational Decisionmaking Along the Delaware River, 120 U. PA. L. REV. 419 (1972) (analyzing the structure of the Delaware River Basin Commission and identifying ways in which division of labor between state and federal officials undermined the Commission's goals).
320. See supra note 45.
321. See, e.g., Jerry L. Mashaw & Dylan S. Calsyn, Block Grants, Entitlements, and Federalism: A Conceptual Map of Contested Terrain, 14 YALE L. &POL'Y REV. 297 (1996).
322. There has been a good deal of writing on state courts as a site of resistance-specifically, state court interpretations of both federal law and state constitutions that conflict with federal interpretations. See, e.g., JAMES A GARDNER, INTERPRETING STATE CONSTITUTIONS 228-72 (2005);
323. Frederic M. Bloom, State Courts Unbound, 93 CORNELL L. REV. 501 (2008);
324. William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N. Y. U. L. REV. 535 (1986);
325. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 STAN. L. REV. 817 (1994);
326. Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035 (1977);
327. James A Gardner, State Constitutional Rights as Resistance to National Power: Toward a Functional Theory of State Constitutions, 91 GEO. L.J. 1003 (2003);
328. Paul W. Kahn, Interpretation and Authority in State Constitutionalism, 106 HARV. L. REV. 1147 (1993);
329. Walter F. Murphy, Lower Court Checks on Supreme Court Power, 53 AM. POL. SCI. REV. 1017 (1959).
330. See generally Robert M. Cover, The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation, 22WM. &MARYL. REV. 639 (1981) (discussing the value of complex concurrency in the American legal system).
331. GRODZINS, supra note 14;
332. Kramer, supra note 37;
333. Kramer, supra note 27.
334. The classic formulation of these competing visions comes from James Madison. See THE FEDERALIST NOS.47-48 (James Madison).
335. For a markedly different approach to the relationship between cooperative federalism and separation of powers, see Hills, Federalism in Constitutional Context, supra note 18, at 181, which states that "competition between federal and non-federal officials for implementation authority helps insure that federal laws are implemented by officials who are both faithful to the purposes of such laws yet independent from Congress."
336. For instance, if we value state contestation because it contributes to the marketplace of ideas, we are likely to prefer strategies that make disagreement visible (like loosening preemption rules so that states do not need to cloak their challenges in ill-fitting regulatory garb).
337. Cf. Saikrishna Bangalore Prakash, Field Office Federalism, 79 VA. L. REV. 1957 (1993) (arguing that Congress should be able to commandeer state executives and state courts, but not state legislatures).
338. For instance, such a commitment might buttress judicial skepticism of § 1983 actions designed to tamp down on state departures from federal programs. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273 (2002);
339. Blessing v. Freestone, 520 U.S. 329 (1997). Conversely, a strong commitment to uncooperative federalism might push against "hard look review" in cases like Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971), in which federal agencies respond to state resistance.
340. See, e.g., Peter L. Strauss, Revisiting Overton Park: Political and Judicial Controls over Administrative Actions Affecting the Community, 39 UCLA L. REV. 1251 (1992). We are indebted to Jerry Mashaw for suggesting both examples.
341. See, e.g., Gerken, supra note 108;
342. Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099 (2005);
343. Heather K. Gerken, Toward a New Theory of Minority Empowerment: Elections and Governance (2009) (unpublished manuscript, on file with author).