Cooperative federalism, the new formalism, and the separation of powers revisited: Free enterprise fund and the problem of presidential oversight of state-government officers enforcing federal law

Duke Law Journal

Volumn 61, Issue 8, 2012, Pages 1599-1669

  Krotoszynski, Ronald J ^a  

^a UNIVERSITY OF ALABAMA SCHOOL OF LAW   (United States)

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EID: 84864796191     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (206)

1. See Linda D. Jellum, "Which Is To Be Master," the Judiciary or the Legislature? When Statutory Directives Violate Separation of Powers, 56 UCLA L. REV. 837, 854-55, 860-62, 870- 78 (2009) (discussing formalism and functionalism and providing a comprehensive survey of the relevant legal literature).
2. see also M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1136-47 (2000) (discussing the common ground between formalism and functionalism and describing that common ground as incoherent and inadequate).
3. John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1950-62 (2011) (discussing formalism and functionalism and questioning the utility of the dichotomy in resolving arguments about administrative structure).
4. Martin H. Redish & Elizabeth J. Cisar, "If Angels Were To Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L.J. 449, 450 (1991) (footnote omitted).
5. See Harold J. Krent, Federal Power, Non-Federal Actors: The Ramifications of Free Enterprise Fund, 79 FORDHAM L. REV. 2425, 2427 (2011) (noting that the decision in Free Enterprise Fund v. Public Co. Accounting Oversight Board, 130 S. Ct. 3138 (2010), "provides renewed reason to consider whether congressional delegations outside the federal government" present separation-of-powers problems).
6. See CLIFFORD RECHTSCHAFFEN & DAVID L. MARKELL, REINVENTING ENVIRONMENTAL ENFORCEMENT AND THE STATE/FEDERAL RELATIONSHIP 43 (2003) ("Congress established a 'cooperative federalism' structure that makes EPA ultimately responsible for program delivery while reserving the primary front lines implementation role for willing and capable states.").
7. see also William L. Andreen, Delegated Federalism Versus Devolution: Some Insights from the History of Water Pollution Control, in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION 257, 258 (William W. Buzbee ed., 2009) (noting that the Clean Water Act, 33 U.S.C. §§ 1251-1387 (2006 & Supp. IV 2010), is an example of cooperative federalism because the enforcement "structure is not just federal but also involves overlapping and intertwined federal and state roles").
8. Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1174 (1995) ("The cooperative federalism model seeks to . . . establish[] national environmental standards while leaving their attainment to state authorities subject to federal oversight.")
9. See Harold J. Krent, The Private Performing the Public: Delimiting Delegations to Private Parties, 65 U. MIAMI L. REV. 507, 507 (2011) ("Private parties discharge critical roles in the Obama Administration, as they have in administrations past.").
10. Evan Caminker, The Unitary Executive and State Administration of Federal Law, 45 U. KAN. L. REV. 1075, 1075 (1997).
11. see also A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN To Route Around the APA and the Constitution, 50 DUKE L.J. 17, 20, 34-35, 168-69 (2000) (discussing ICANN, a private corporation vested with the power to regulate Internet domain names).
12. To be clear, the federal government regularly contracts with private enterprises to provide essential goods and services.
13. See Printz v. United States, 521 U.S. 898, 910-11 (1997) (stating that problems arise when Congress attempts to impose "responsibilities without the consent of the States").
14. New York v. United States, 505 U.S. 144, 166 (1992) (identifying "a variety of methods, short of outright coercion, by which Congress may urge a State to adopt a legislative program with federal interests").
15. U.S. CONST. art. II, § 1, cl. 1. For a comprehensive overview of the unitary-executive theory, see generally Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541 (1994).
16. U.S. CONST. art. II, § 3.
17. See Evan H. Caminker, Printz, State Sovereignty, and the Limits of Formalism, 1997 SUP. CT. REV. 199, 230-32 ("Given the President's inability to exercise 'meaningful control' over state officials' implementation decisions, the principle of executive unity would seem to invalidate all conventional joint federal-state programs.").
18. Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62 (1990) ("[B]y vesting responsibilities in officials independent of the President's authority, Congress has attempted to restrict the Executive's involvement in executing such laws . . . .").
19. See generally Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009) (positing that states may use their role as "servant[s]" to and "insider[s]" of the federal government to act as "rivals and challengers" in some instances- what the authors call "uncooperative federalism" (emphasis omitted)).
20. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534 (2011) (arguing that the different roles played by states should impact how statutes are interpreted and understood from a federalism perspective).
21. Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557 (2000) (criticizing cooperative federalism as a means to reduce political transparency and accountability).
22. Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. REV. 698 (2011) (describing how states can gain some control over federal power by adjusting enforcement levels and "pressing their own interpretations of federal law").
23. Neil S. Siegel, Commandeering and Its Alternatives: A Federalism Perspective, 59 VAND. L. REV. 1629 (2006) (discussing how the anticommandeering rule can harm federalism and state autonomy by triggering preemption).
24. Counterexamples exist, however, and some legal scholars have squarely addressed the separation-of-powers question.
25. See Neil Kinkopf, Of Devolution, Privatization, and Globalization: Separation of Powers Limits on Congressional Authority To Assign Federal Power to Non-Federal Actors, 50 RUTGERS L. REV. 331, 366-70, 377-81 (1998) (arguing that general separation-of-powers principles should apply when examining the assignment of federal power to nonfederal actors).
26. Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663, 711-19 (2001) (arguing that courts will have to confront the separation-of powers concerns that arise under the growing use of cooperativefederalism regulatory programs).
27. Printz v. United States, 521 U.S. 898 (1997).
28. See, e.g., Jay S. Bybee, Printz, The Unitary Executive, and the Fire in the Trash Can: Has Justice Scalia Picked the Court's Pocket?, 77 NOTRE DAME L. REV. 269, 286 (2001) ("The broadest implications of the separation-of-powers argument in Printz are for those creative arrangements in which Congress has committed the enforcement of federal law to nongovernmental (or at least non-federal and non-state) entities.").
29. David A. Super, Against Flexibility, 96 CORNELL L. REV. 1375, 1390-97 (2011) (examining concurrent legal decisionmaking by various actors and considering "which timing arrangements [for making legal decisions] would best serve social needs across the range of policy areas").
30. See Stern v. Marshall, 131 S. Ct. 2594, 2601 (2011) (vacating a bankruptcy court's final judgment because it had exercised judicial power that is granted only to "the judges of such courts [that] enjoy" Article III protection).
31. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3147 (2010) ("Here the President cannot remove an officer who enjoys more than one level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. . . . This contravenes the President's 'constitutional obligation to ensure the faithful execution of the laws.'" (quoting Morrison v. Olson, 487 U.S. 654, 693 (1988))).
32. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2638 (2010) (holding that two NLRB members could not, alone, exercise the NLRB's statutory authority because they would not satisfy the statute's quorum requirement). For a discussion of these cases and the Supreme Court's strong embrace of formalism in separation-of-powers analysis, see infra Part II.
33. Ronald J. Krotoszynski, Jr., On the Danger of Wearing Two Hats: Mistretta and Morrison Revisited, 38 WM. & MARY L. REV. 417, 475-84 (1997).
34. See, e.g., Bowsher v. Synar, 478 U.S. 714, 736 (1986) (invalidating the Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, 99 Stat. 1037, also known as the Gramm-Rudman-Hollings Act, because it vested executive duties in an officer subject to congressional appointment and control).
35. INS v. Chadha, 462 U.S. 919, 957-59 (1983) (invalidating, on separation-of-powers grounds, the use of line-item-veto provisions that vested in Congress or some part of it the power to superintend the execution of laws).
36. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 87 (1982) (invalidating portions of the Bankruptcy Act of 1978, Act of Nov. 6, 1978, Pub. L. No. 95-598, 92 Stat. 2549), because they vested core Article III powers in non-Article III bankruptcy judges).
37. See, e.g., Bowsher, 478 U.S. at 721-28 ("The structure of the Constitution does not permit Congress to execute the laws.").
38. Chadha, 462 U.S. at 944-52 ("The very structure of the Articles delegating and separating powers under Arts. I, II, and III exemplifies the concept of separation of powers . . . .").
39. N. Pipeline Constr. Co., 458 U.S. at 57-62, (maintaining that powers are distributed among the three branches according "to the constitutional structure established by the Framers").
40. see also Bernard Schwartz, Curiouser and Curiouser: The Supreme Court's Separation of Powers Wonderland, 65 NOTRE DAME L. REV. 587, 597-608 (1990) (describing and criticizing "the Burger Court's increasingly formalistic approach to the separation of powers").
41. See Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 851-52, 856-57 (1986) (espousing a functionalist test in which "due regard must be given in each case to the unique aspects of the congressional plan at issue and its practical consequences in light of the larger concerns").
42. see also Stern, 131 S. Ct. at 2625-26 (Breyer, J., dissenting) (arguing that a delegation of power should only constitute a violation if it "constitutes a significant encroachment" by one branch of the government onto another).
43. Mistretta v. United States, 488 U.S. 361 (1989).
44. Morrison v. Olson, 487 U.S. 654 (1988).
45. Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986).
46. See, e.g., Stern, 131 S. Ct. at 2601 (Scalia, J., concurring) ("[A]n Article III judge is required for all federal adjudications . . . .").
47. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3154 (2010) ("[The dual for-cause removal] arrangement is contrary to Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's failings to those whom he can oversee, the President is no longer the judge of the Board's conduct.").
48. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010).
49. see also Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1165-66 (1992) (describing the "strong form" of the unitary-executive theory and positing the legality of direct presidential usurpation of duties delegated to another executive-branch entity, such as the Federal Trade Commission, or by parity of logic, the Federal Reserve Bank).
50. Saikrishna Bangalore Prakash, Note, Hail to the Chief Administrator: The Framers and the President's Administrative Powers, 102 YALE L.J. 991, 992 (1993) (arguing that "[w]henever an official is granted statutory discretion, the Constitution endows the President with the authority to control that discretion").
51. U.S. CONST. art. II, § 1.
52. See infra Part IV.C.
53. See infra Part IV.A.
54. See 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, 816 (1998) (proposing a "functional theory of cooperative federalism" that nevertheless "maintains that state and local governments should have 'autonomy'-that is, immunity from federal demands for regulatory services").
55. As one commentator notes, "The general notion that the United States might force a State to enforce its own law or regulations strikes a discordant cord under America's doctrine of dual sovereignty." Alfred R. Light, The Myth of the Everglades Settlement, 11 ST. THOMAS L. REV. 55, 60 n.37 (1998) (citing New York v. United States, 505 U.S. 144, 188 (1992)).
56. Moreover, the rule that the federal courts will not review a state court decision if that decision rests on independent and adequate state law grounds reflects and incorporates the more general principle that the federal government does not superintend the enforcement of state laws by state governments. See Michigan v. Long, 463 U.S. 1032, 1037-42 (1983) (noting the "Court's refusal to decide cases where there is an adequate and independent state ground").
57. Minnesota v. Nat'l Tea Co., 309 U.S. 551, 558-59 (1940) (Hughes, C.J., dissenting) ("The fact that provisions of the state and federal constitutions may be similar or even identical does not justify us in disturbing a judgment of a state court which adequately rests upon its application of the provision of its own constitution.").
58. Stern v. Marshall, 131 S. Ct. 2594 (2011).
59. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010).
60. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603, 609 (2001).
61. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 634 (2000) (opposing "the export of the American system [of separation of powers as a model for constitutions of other countries] in favor of an approach based on the constitutional practice of . . . many other nations.").
62. see also Gary Lawson, Territorial Governments and the Limits of Formalism, 78 CALIF. L. REV. 853, 857-58 (1990) (noting that a formalist approach to separation-of-powers analysis utilizes a process of categorization derived from the three vesting clauses of the Constitution, which do not permit open-ended balancing exercises to justify a reallocation of powers among the three branches).
63. see also Lee S. Liberman, Morrison v. Olson: A Formalistic Perspective on Why the Court Was Wrong, 38 AM. U. L. REV. 313, 343 (1989) ("A formalist decision uses a syllogistic, definitional approach to determining whether a particular exercise of power is legislative, executive, or judicial.").
64. See, e.g., Mistretta v. United States, 488 U.S. 361, 378-79, 396 (1989) (upholding the Federal Sentencing Guidelines).
65. Morrison v. Olson, 487 U.S. 654, 695-97 (1988) (upholding a statute creating an independent counsel, despite the fact that the president could not directly fire the officer).
66. See, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2620 (2011) (holding that the bankruptcy court lacked the Article III authority to enter a final judgment on a counterclaim).
67. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3147 (2010) (holding that the good- cause-removal provision protecting members of the Public Company Accounting Oversight Board (PCAOB), created by the Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified in scattered sections of 11, 15, 18, 28, and 29 U.S.C.), when viewed in conjunction with a similar good-cause-removal protection insulating members of the Securities and Exchange Commission from presidential removal from office, violated separation-of-powers principles because the dual limitations on the president's removal power operated to deprive the president of sufficient ability to oversee and supervise the PCAOB).
68. Bowsher v. Synar, 478 U.S. 714, 736 (1986) (holding that the powers vested in the comptroller general by Congress violated the separation of powers by giving Congress a direct role in the execution of the laws).
69. INS v. Chadha, 462 U.S. 919, 956-57 (1983) (holding that a legislative-veto provision violated separation of powers by creating a loophole for legislation to bypass bicameralism and presentment to the president).
70. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 85-87 (1982) (holding that Congress may not transfer core judicial powers from Article III courts to a non-Article III court).
71. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3147 (2010).
72. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified as amended in scattered sections of 11, 15, 18, 28, and 29 U.S.C.).
73. 15 U.S.C. §§ 7213(a), 7215 (2006 & Supp. IV 2010).
74. See Free Enter. Fund, 130 S. Ct. at 3148-49 ("The parties agree that the Commissioners cannot themselves be removed by the President except under the . . . standard of 'inefficiency, neglect of duty, or malfeasance in office' . . . ." (quoting Humphrey's Ex'r v. United States, 295 U.S. 602, 621 (1935))).
75. Free Enter. Fund, 130 S. Ct. at 3147.
76. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 681-83 (D.C. Cir. 2008), rev'd, 130 S. Ct. 3138 (2010).
77. Free Enter. Fund, 130 S. Ct. at 3153.
78. Free Enter. Fund, 130 S. Ct. at 3155.
79. Stern v. Marshall, 131 S. Ct. 2594, 2608 (2011).
80. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2639-40 (2010).
81. The NLRB's organic act defines a quorum of the five-member board as three members. 29 U.S.C. § 153(b) (2006).
82. See New Process Steel, 130 S. Ct. at 2641 ("[I]f Congress had intended to authorize two members alone to act for the Board on an ongoing basis, it could have said so in straightforward language.").
83. See generally Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power To Tax, and the Ratification Doctrine, 80 IND. L.J. 239, 241-45, 260-68 (2005) (discussing the nondelegation doctrine, its origins, and its functions).
84. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1991) (explaining that the "Chief Executive's most important constitutional duty" is to "take Care that the Laws be faithfully executed" (quoting U.S. CONST. art. II, § 3) (internal quotation marks omitted)).
85. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1991).
86. Printz v. United States, 521 U.S. 898, 922-23 (1997).
87. Printz, 521 U.S. at 923 n.12.
88. But see Annie Gowen, A Small-Government 'Revolution' in Kansas, WASH. POST, Dec. 22, 2011, at A1 (noting that Governor Sam Brownback "rejected a $31.5 million federal grant for a new health-insurance exchange because he oppose[d] President Obama's health-care law").
89. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 96-97, 101-03 (1992) (describing in some detail how the federal government will directly enforce federal standards if a state elects not to assume such responsibilities by seeking and obtaining "plan state" status under the OSH Act).
90. Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1592 (codified as amended at 29 U.S.C. §§ 651-678 (2006 & Supp. IV 2010)).
91. See infra notes 155-59 and accompanying text.
92. Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified as amended at 42 U.S.C. §§ 7401-7642 (2006 & Supp. III 2009)).
93. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§ 1251-1387 (2006 & Supp. IV 2010)).
94. See infra Part III.
95. See infra notes 155-70, 197-221 and accompanying text.
96. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3164 (2010) ("The Constitution that makes the President accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties. Without such power, the President could not be held fully accountable for discharging his own responsibilities . . . .").
97. Roderick M. Hills, Jr., Federalism in Constitutional Context, 22 HARV. J.L. & PUB. POL'Y 181, 185 (1998).
98. ARTICLES OF CONFEDERATION OF 1781, art. IX (failing to create or empower a national executive authority).
99. Saikrishna Prakash, New Light on the Decision of 1789, 91 CORNELL L. REV. 1021, 1028 (2006).
100. see also Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231, 277 (2001) (noting that the Continental Congress undertook executive duties, such as foreign affairs, in light of the absence of a national executive under the Articles of Confederation).
101. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of the War Powers, 84 CALIF. L. REV. 167, 218 (1996) ("State governments provided working examples of a separate executive branch, which the Articles of Confederation lacked."). In fact, the national government established under the Articles of Confederation also lacked federal courts.
102. See Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L. REV. 1617, 1643 (1997) ("The Articles of Confederation lacked an effective supremacy clause, executive, or judiciary, and Congress lacked adequate power to raise revenue or to control the states in foreign relations.").
103. See U.S. CONST. art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America.").
104. See Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L. REV. 573, 596-97, 649-50, 662-64, 668-69 (1984) ("[O]ne must remain able to characterize the President as the unitary, politically accountable head of all lawadministration, sufficiently potent in his own relationships with those who actually perform it to serve as an effective counter to a feared Congress.").
105. See, e.g., Dina ElBoghdady, FDA Faulted over State Inspections, WASH. POST, Dec. 15, 2011, at A2 (noting the problems with the Food and Drug Administration's (FDA's) increasing reliance on state-government agencies to inspect food-packaging and food-processing facilities and reporting on a "common problem" involving state agencies' "inability to identify violations" of federal food-safety regulations).
106. Leaving the balancing functions in the agencies would create multiheaded government, government with neither the capacity to come to a definitive resolution nor the ability to see that any resolution is honored in all agencies to which it may apply.").
107. Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, § 18, 84 Stat. 1592, 1608 (codified as amended at 29 U.S.C. § 667 (2006)).
108. John H. Stender, An OSHA Perspective and Prospective, 26 LAB. L.J. 71, 73 (1975).
109. 29 U.S.C. § 667(b) (2006).
110. See Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98-99 (1992) ("[W]e hold that nonapproved state regulation of occupational safety and health issues for which a federal standard is in effect is impliedly preempted as in conflict with the full purposes and objectives of the OSH Act." (citation omitted)).
111. 29 U.S.C. § 667(e).
112. State Occupational Safety and Health Plans, OCCUPATIONAL SAFETY & HEALTH ADMIN., U.S. DEP'T OF LABOR, http://www.osha.gov/dcsp/osp/index.html (last visited Jan. 31, 2012).
113. 29 U.S.C. § 667(f).
114. Markus G. Puder & Michel J. Paque, Tremors in the Cooperative Environmental Federalism Arena: What Happens When a State Wants To Assume Only Portions of a Primacy Program or Return a Primacy Program?-The Underground Injection Control Program Under the Safe Drinking Water Act as a Case Study, 24 TEMP. J. SCI. TECH. & ENVTL. L. 71, 72 (2005).
115. 33 U.S.C. § 1342(a)(1) (2006).
116. Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010) (to be codified in scattered sections of the U.S. Code).
117. See Bryan J. Leitch, Where Law Meets Politics: Freedom of Contract, Federalism, and the Fight over Health Care, 27 J.L. & POL. 177 (2011) (detailing the constitutional challenges to the ACA and the political values underlying them).
118. Brendan S. Maher, The Benefits of Opt-In Federalism, 52 B.C. L. REV. 1733, 1733-34 (2011) (noting that "[f]ew national debates have rivaled the intensity of those regarding the Patient Protection and Affordable Care Act" and positing that "[t]he constitutional dispute is part of a larger argument that is perhaps America's oldest: what is the proper role of the federal government?").
119. Ruth Mason, Federalism and the Taxing Power, 99 CALIF. L. REV. 975, 979 (2011) ("More controversially, as part of the Patient Protection and Affordable Care Act (ACA), Congress recently inserted into the tax law a provision that has come to be known as the 'individual mandate.' This provision imposes a penalty on certain people who fail to buy private medical insurance.").
120. John Copeland Nagle, Saxe's Aphorism, 79 GEO. WASH. L. REV. 1505, 1519-25 (2011) (reviewing JOHN F. MANNING & MATTHEW C. STEPHENSON, LEGISLATION AND REGULATION (2010)) (noting the "controversy surrounding the congressional enactment of the ACA and the debate about the role of the administrative agencies responsible for implementing the Act" and discussing the main substantive provisions of the ACA, which involve a national plan for universal healthcare coverage and access).
121. ACA § 1501(a), 124 Stat. at 242-44 (to be codified at 42 U.S.C. § 18091).
122. Patient Protection and Affordable Care Act.
123. Establishment of Exchanges and Qualified Health Plans, 76 Fed. Reg. 41,866, (July 15, 2011) (to be codified at 45 C.F.R. pts. 155-56).
124. N.C. Aizenman, States Will Have Flexibility in Defining Required Health Coverage, WASH. POST, Dec. 17, 2011, at A5.
125. Patient Protection and Affordable Care Act, 76 Fed. Reg. at 41,870.
126. Stephen C. Robertson, Note, State Permitting: United States v. Smithfield Foods, Inc. and Federal Overfiling Under the Clean Water Act, 23 WM. & MARY ENVTL. L. & POL'Y REV. 593, 606 (1999).
127. See, e.g., Clean Water Act § 309(a)(2), 33 U.S.C. § 1319(a)(2) (2006) (requiring notice of ninety days before suspending a state's primacy status under the Act).
128. Clean Air Act § 113(a)(2), 42 U.S.C. § 7413(a)(2) (2006) (requiring a thirty-day waiting period and public notice before suspension).
129. Resource Conservation and Recovery Act § 3006(e), 42 U.S.C. § 6926(e) (2006) (requiring the EPA to assume responsibility for enforcing the statute if a state defaults on its obligations "within a reasonable time," which the statute defines as ninety days).
130. see also Ellen R. Zahren, Comment, Overfiling Under Federalism: Federalism Nipping at State Heels To Protect the Environment, 49 EMORY L.J. 373, 381 (2000) ("The biggest sanction in all of the Acts is withdrawal of a state's delegation and implementation of a federal program.").
131. Memorandum from A. James Barnes, Deputy Adm'r, U.S. Envtl. Prot. Agency, to Reg'l Adm'rs, U.S. Envtl. Prot. Agency 1-2 (May 19, 1986).
132. See United States v. Smithfield Foods, Inc., 965 F. Supp. 769, 791-95 (E.D. Va. 1997) (granting the EPA authority over the defendant because Virginia's sanctions were not comparable to those under the CWA).
133. See U.S. CONST. art. II, § 1, cl. 1 ("The executive Power shall be vested in a President of the United States of America.").
134. Peter L. Strauss, Foreword: Overseer, or "The Decider"? The President in Administrative Law, 75 GEO. WASH. L. REV. 696, 696 (2007).
135. U.S. CONST. art. II, § 1.
136. see also Geoffrey P. Miller, Independent Agencies, 1986 SUP. CT. REV. 41, 44 ("The President retains the constitutional power to direct the officer to take particular actions . . . or to refrain from acting . . . .").
137. Susan M. Davies, Comment, Congressional Encroachment on Executive Branch Communications, 57 U. CHI. L. REV. 1297, 1300 (1990) ("[The Framers] created a unitary executive, popularly elected and politically accountable: a single person in whom all executive power would reside.").
138. The Framers, of course, did not provide for popular election of the president. See U.S. CONST. art. II, § 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . ."). The equal voting rights of the states in the Senate make the Electoral College's composition deeply undemocratic (for example, Wyoming and Alaska enjoy grossly disproportionate voting strength).
139. Thus, the House of Representatives has more democratic legitimacy than the president, if democratic legitimacy requires respect for the principle of equal voting power among citizens. See Reynolds v. Sims, 377 U.S. 533, 576 (1964) ("[T]he Equal Protection Clause requires both houses of a state legislature to be appointed on a population basis . . . .").
140. Baker v. Carr, 369 U.S. 186, 207- 08 (1962) (recognizing the validity of a claim under the Equal Protection Clause, U.S. CONST. amend. XIV, § 1, alleging an "irrational disregard of the standard of apportionment prescribed in the State Constitution or of any standard, effecting a gross disproportion of representation to voting population" and holding that "[a] citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from a dilution by a false tally").
141. Morrison v. Olson, 487 U.S. 654, 709 (Scalia, J., dissenting).
142. U.S. CONST. art. II, § 2, cl. 1.
143. Morton Rosenberg, Congress's Prerogative over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration's Theory of the Unitary Executive, 57 GEO. WASH. L. REV. 627, 689 (1989).
144. A. Michael Froomkin, Note, In Defense of Administrative Agency Autonomy, 96 YALE L.J. 787, 800-01 (1987) (arguing that the Opinions Clause refutes the inference that the president should enjoy plenary power over all executive-branch officers and asking "[i]f the President has so much control over the executive that he can fire at will, why put the power to request written opinions in the Constitution?").
145. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1515-17 (1991) (noting that the protection of individual rights is the goal of the separation of powers).
146. U.S. CONST. art. II, § 2, cl. 2.
147. see also Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3162-64 (2010) (discussing the power of an independent agency to appoint "inferior officers" and the Appointments Clause more generally).
148. WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 67-68 (Transaction Publishers 2002) (1908).
149. see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 190 (2000) (Breyer, J., dissenting) ("[T]he President and Vice President are the only public officials whom the entire Nation elects.").
150. Saikrishna B. Prakash, Branches Behaving Badly: The Predictable and Often Desirable Consequences of the Separation of Powers, 12 CORNELL J.L. & PUB. POL'Y 543, 546 (2003) ("[M]any people welcome the President's relatively recent and much larger role in tax and spending policy because they believe that the President is the only elected federal official who considers the welfare of the entire country in making tax and spending decisions.").
151. Robert J. Reinstein, The Limits of Executive Power, 59 AM. U. L. REV. 259, 335 (2009) ("The nation looks to the President, and not to Congress, for leadership in dealing with crises, and for good reason. The President is the only national official who is elected by the entire country.").
152. Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2331-32 (2001).
153. New York v. United States, 505 U.S. 144 (1992).
154. Compare Printz v. United States, 521 U.S. 898, 929 (1997) (noting that previous cases "upheld the statutory provisions at issue precisely because they did not commandeer state government, but merely imposed preconditions to continued state regulation of an otherwise pre-empted field"), with infra text accompanying note 265.
155. New York, 505 U.S. at 168.
156. ALICE M. RIVLIN, REVIVING THE AMERICAN DREAM: THE ECONOMY, THE STATES, AND THE FEDERAL GOVERNMENT 82-100 (1992).
157. Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reform?, 81 MINN. L. REV. 97, 116-20 (1996).
158. see also DAVID B. WALKER, THE REBIRTH OF FEDERALISM: SLOUCHING TOWARD WASHINGTON 8, 92-150, 139, 234-40 (1995) (discussing several federalsubsidy programs and the conditions that Congress attaches to such financial aid to the states).
159. Samuel R. Bagenstos, Spending Clause Litigation in the Roberts Court, 58 DUKE L.J. 345, 372- 73 (2008) (noting that states have become dependent on "federal largesse").
160. Brandon Stewart, List of 27 States Suing over Obamacare, HERITAGE FOUND. (Jan. 17, 2011, 4:00 PM), http://blog.heritage.org/2011/01/17/list-of-states-suing-over-obamacare.
161. see also State Actions To Implement Health Insurance Exchanges, NAT'L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/issues-research/health/state-actions-to-implement-thehealth-benefit-exch.aspx (last updated Mar. 1, 2012).
162. New York, 505 U.S. at 188.
163. Diminishes policy competition among the states.
164. Erodes self-government and liberty.".
165. Cf. William Van Alstyne, "Thirty Pieces of Silver" for the Rights of Your People: Irresistible Offers Reconsidered as a Matter of State Constitutional Law, 16 HARV. J.L. & PUB. POL'Y 303, 305 (1991) (noting that "there is good reason for the renewed interest in the independent efficacy of state constitutional law as a set of restrictions on what state and local government may presume to do").
166. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 824-30 (2003).
167. see also Robert W. Hahn & Cass R. Sunstein, A New Executive Order for Improving Federal Regulation?: Deeper and Wider Cost-Benefit Analysis, 150 U. PA. L. REV. 1489, 1489-1510 (2002) (comparing and describing the Reagan and Clinton OIRA review programs).
168. See Exec. Order No. 13,422, § 1(a), 3 C.F.R. 191, 191 (2008) (requiring each agency to identify and explain the required agency action so that the president could determine "whether any new regulation is warranted" (internal quotation mark omitted)).
169. Exec. Order No. 12,866, 3 C.F.R. 638, 638 (1994), reprinted in 5 U.S.C. § 601 app. at 745, 745 (2006) ("The objectives of this Executive order are to enhance planning and coordination with respect to both new and existing regulations . . . ."). For helpful and comprehensive reviews of the contemporary practice of White House review of agency activities, see generally James Blumstein, Regulatory Review by the Executive Office of the President: An Overview and Policy Analysis of Current Issues, 51 DUKE L.J. 851 (2001).
170. Christopher C. DeMuth & Douglas H. Ginsburg, White House Review of Agency Rulemaking, 99 HARV. L. REV. 1075 (1986).
171. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1 (1994).
172. New York v. United States, 505 U.S. 144, 188 (1992).
173. Cf. Schaffer v. Weast, 546 U.S. 49, 69-71 (2005) (Breyer, J., dissenting) (noting that the federal statute at issue in the case permitted the states to determine procedure for actions brought under the statute).
174. Lisa Brodoff, Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings, 32 N.Y.U. REV. L. & SOC. CHANGE 131, 163-64 (2008) (noting that states may apply their local administrative procedure acts or other procedures in the context of public-assistance hearings, including assignment of the burden of proof in such hearings).
175. Robert L. Fischman, Cooperative Federalism and Natural Resources Law, 14 N.Y.U. ENVTL. L.J. 179, 190-93 (2005) (noting that states develop and apply their own implementation programs and procedures in federal environmental cooperative-federalism programs).
176. Joseph R. Oliveri, Note, Converse-Erie: The Key to Federalism in an Increasingly Administrative State, 76 GEO. WASH. L. REV. 1372, 1383- 87, 1389-91 (2008) (noting that in the absence of a federal statute requiring a particular procedure, states are free to establish their own administrative procedures, subject only to dueprocess constraints).
177. Indeed, given Printz and New York, which together establish a strong federalism-based anticommandeering rule that insulates state executive and legislative officers from any general duty to directly implement federal law, see Printz v. United States, 521 U.S. 898, 935 (1997) (prohibiting commandeering of state executive officers).
178. New York v. United States, 505 U.S. 144, 168-69, 188 (1992) (prohibiting the commandeering of state legislative officers), it is not entirely clear whether Congress could impose particular procedural rules on state agencies enforcing state-law programs enacted to enforce federal labor, environmental, or healthcare objectives.
179. See THE FEDERALIST NO. 70, at 423 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (noting that "[e]nergy in the executive is a leading character in the definition of good government").
180. An adequate provision for its support.
181. Rankin v. McPherson, 483 U.S. 378, 394 (1987) (Scalia, J., dissenting) (quoting petitioner) (internal quotation marks omitted).
182. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
183. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
184. See generally Ronald J. Krotoszynski, Jr., Why Deference?: Implied Delegations, Agency Expertise, and the Misplaced Legacy of Skidmore, 54 ADMIN. L. REV. 735, 739-49 (2002) (discussing the interplay between Chevron and Skidmore and arguing that expertise, rather than an implied-perhaps entirely fictional-delegation of policymaking authority, better justifies federal court deference to agency statutory interpretations).
185. Diminishes policy competition among the states.
186. Erodes self-government and liberty.").
187. See Stephen Breyer, Our Democratic Constitution, 77 N.Y.U. L. REV. 245, 258 (2002) ("Modern efforts to create more efficient regulation recognize the importance of that local involvement. They seek a kind of cooperative federalism that would, for example, have federal officials make expertise available to state and local officials while seeking to separate expert and fact-related matters from more locally based questions of value.").
188. See P.R. Tel. Co. v. Telecomm. Regulatory Bd., 189 F.3d 1, 14 (1st Cir. 1999) ("The [Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 U.S.C.),] exemplifies a cooperative federalism system, in which state commissions can exercise their expertise about the needs of the local market and local consumers, but are guided by the provisions of the Act and by the concomitant FCC regulations . . . .").
189. see also Keith Cunningham-Parmeter, Forced Federalism: States as Laboratories of Immigration Reform, 62 HASTINGS L.J. 1673, 1685 (2011) ("In theory, states working under an agreement with [Immigration and Customs Enforcement] should be able to serve federally defined goals while developing unique enforcement techniques based on local expertise.").
190. Amy Widman, Advancing Federalism Concerns in Administrative Law Through a Revitalization of Enforcement Powers: A Case Study of the Consumer Product Safety and Improvement Act of 2008, 29 YALE L. & POL'Y REV. 165, 177-78 (2010) ("The cooperation often consisted of parallel state administrative regimes with local expertise working under the auspices of the federal agency. The state regimes would issue permits, investigate violations, and issue sanctions, but with varying degrees of federal oversight.").
191. See Levin v. Commerce Energy, Inc., 130 S. Ct. 2323, 2328, 2330 (2010) (applying the Tax Injunction Act, 28 U.S.C. § 1341 (2006), to block adjudication of a challenge to a state tax in federal court because of the states' critical need for revenue to maintain their government operations).
192. Fair Assessment in Real Estate Ass'n v. McNary, 454 U.S. 100, 112 (1981) (applying the Tax Injunction Act to protect state revenue collection and noting that "a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in separate ways" support federal court abstention in such cases (quoting Younger v. Harris, 401 U.S. 37, 44-45 (1971))).
193. Dows v. City of Chicago, 78 U.S. (11 Wall.) 108, 110 (1871) ("It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible.").
194. See Michigan v. Long, 463 U.S. 1032, 1041 (1983) (noting the "principle that [federal courts] will not review judgments of state courts that rest on adequate and independent state grounds").
195. 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, 1267 (2004) ("[S]ome of the more important conditional preemption programs within the American system of cooperative federalism provide federal funds to states in return for implementation and administration of a state-level plan.").
196. Richard B. Stewart, Federalism and Rights, 19 GA. L. REV. 917, 957 (1985) ("Cooperative federalism creatively blends the[] powers [of state and national governments], using the federal fisc to harness state and local capacities to national objectives while allowing for a measure of decentralized flexibility in implementation.").
197. See, e.g., Robert F. Rich, Cinthia L. Deye & Elizabeth Mazur, The State Children's Health Insurance Program: An Administrative Experiment in Federalism, 2004 U. ILL. L. REV. 107, 115-16 (noting that "[t]here are also yearly audits of the program and specific reporting requirements" in the context of federal support for state children's health-insurance programs).
198. Because "state officials are more accountable to the electorate-whether directly or indirectly-than are private entities".
199. Because "there is far less danger of congressional aggrandizement in the context of delegation to state entities").
200. Fugitive Slave Act, ch. 7, § 1, 1 Stat. 302, 302 (1793).
201. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
202. U.S. CONST. art. VI, cl. 2.
203. See McCulloch, 17 U.S. (4 Wheat.) at 405-06 ( "If any one proposition could command the universal assent of mankind, we might expect it would be this-that the government of the Union, though limited in its powers, is supreme within its sphere of action. . . . The government of the United States, then, though limited in its powers, is supreme.
204. Its laws, when made in pursuance of the constitution, form the supreme law of the land, 'any thing in the constitution or laws of any State to the contrary notwithstanding.'" (quoting U.S. CONST. art. VI, cl. 2)).
205. see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000) ("A fundamental principle of the Constitution is that Congress has the power to preempt state law.").
206. For a comprehensive overview of the Supremacy Clause's history and meaning, and the relevant Supreme Court case law applying it, see generally Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).