From sovereignty and process to administration and politics: The afterlife of American federalism

Yale Law Journal

Volumn 123, Issue 6, 2014, Pages 1920-1957

  Bulman Pozen, Jessica ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84898618414     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (188)

1. Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1, 2, 23 (1950).
2. id. at 4 (defining dual federalism); see also, e.g., Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 MICH. L. REV. 752 (1995) (defending dual federalism); John Yoo, The Judicial Safeguards of Federalism, 70 S. CAL. L. REV. 1311 (1997) (same). For a few trenchant critiques, suggesting that even as a historical matter dual federalism may owe more to an invented past than to actual practice, see Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000); Judith Resnik, Categorical Federalism: Jurisdiction, Gender and the Globe, 111 YALE L.J. 619 (2001)
3. Alison L. LaCroix, The Interbellum Constitution and the Spending Power (Univ. of Chi. Pub. Law & Legal Theory Working Paper No. 420, 2013), http://ssrn.com/abstract=2228335.
4. William N. Eskridge, Jr. & John Ferejohn, The Elastic Commerce Clause: A Political Theory of American Federalism, 47 VAND. L. REV. 1355, 1356 (1994).
5. Broadly speaking, "process federalism" refers to theories that focus on the institutional rules, structures, and practices through which the states and especially the federal government act, rather than the substantive character of governmental action. See generally Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985) ("[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the 'States as States' is one of process rather than one of result.")
6. Ernest A. Young, Two Cheers for Process Federalism, 46 VILL. L. REV. 1349, 1364, 1386 (2001) (defining process federalism as "reliance on political and institutional safeguards to preserve balance in the federal structure," and arguing that "[p]rocess federalism's central insight is that the federal-state balance is affected not simply by what federal law is made, but by how that law is made"). I elaborate on this definition and describe process federalism's variants in Part I.
7. Heather K. Gerken, Federalism as the New Nationalism: An Overview, 123 YALE L.J. 1889 (2014).
8. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954).
9. id. at 546-47
10. THE FEDERALIST NOS. 45, 46, at 291, 296 (James Madison) (Clinton Rossiter ed., 1961); see also McCulloch v. Maryland, 17 U.S. 316, 435 (1819) ("The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power.").
11. Wechsler, supra note 6, at 558.
12. JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980)
13. infra note 26 (citing other contemporary process accounts).
14. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). But cf. New York v. United States, 505 U.S. 144 (1992); Gregory v. Ashcroft, 501 U.S. 452 (1991).
15. Wechsler also did not attend to other historical developments, including the passage of the Sixteenth Amendment, which authorized the federal income tax and thus vastly increased the federal government's ability both to act in its own right and to purchase state cooperation.
16. Kramer, supra note 2, at 222
17. Young, supra note 4, at 1357-58.
18. Kramer, supra note 2, at 278-87
19. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1522-42 (1994).
20. Kramer, supra note 2, at 269.
21. Id. at 276.
22. Corwin, supra note 1, at 2 ("[W]ithin the National Government itself an increased flow of power in the direction of the President has ensued."); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J., concurring) ("Vast accretions of federal power, eroded from that reserved by the States, have magnified the scope of presidential activity.").
23. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 2020 (2008) (concluding that agencies outperform Congress in allocating policymaking authority between the federal and state governments); Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2080-83 (2008) (stating that agencies may do as well as Congress and better than the federal courts at preserving a meaningful state regulatory role); Catherine M. Sharkey, Federalism Accountability: "Agency-Forcing" Measures, 58 DUKE L.J. 2125, 2127-28 (2009) (arguing that federal agencies, and not Congress, are "the best possible protectors of state regulatory interests"). For one response to these arguments
24. Stuart Minor Benjamin & Ernest A. Young, Tennis with the Net Down: Administrative Federalism Without Congress, 57 DUKE L.J. 2111 (2008).
25. Galle & Seidenfeld, supra note 17, at 1949-83
26. Sharkey, supra note 17, at 2129, 2149- 50, 2163-70
27. Metzger, supra note 17, at 2080-81 (challenging the conventional wisdom that Congress is more sensitive to state prerogatives than are federal agencies); Sharkey, supra note 17, at 2172-91 (suggesting reforms to the agency rulemaking process that would facilitate more meaningful state-federal dialogue).
28. JENNA BEDNAR, THE ROBUST FEDERATION: PRINCIPLES OF DESIGN 18-19 (2009) (defining federalism to require the constitutionally declared sovereignty of state and federal governments in at least one policy realm each)
29. WILLIAM H. RIKER, FEDERALISM: ORIGIN, OPERATION, SIGNIFICANCE 11 (1964) (defining federalism to require at least one area of action in which state and federal governments are each guaranteed autonomy).
30. Kramer, supra note 2
31. Wechsler, supra note 6
32. Young, supra note 4.
33. William W. Van Alstyne, The Second Death of Federalism, 83 MICH. L. REV. 1709, 1720 (1985).
34. CHOPER, supra note 9
35. Kramer, supra note 2
36. Wechsler, supra note 6.
37. Some process theories contemplate more robust judicial review.
38. Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism after Garcia, 1985 SUP. CT. REV. 341
39. Young, supra note 4.
40. ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION OF FUNDAMENTAL RIGHTS 87-89 (2009) (critiquing process federalism for continuing to delineate distinct areas of state and federal activity); Heather K. Gerken, The Supreme Court 2009 Term-Foreword: Federalism All the Way Down, 124 HARV. L. REV. 4, 15 (2010) ("The de facto autonomy lauded by the process federalists looks remarkably like the de jure autonomy lauded by sovereignty's champions. Both theories depict power as the ability to preside over one's own empire ").
41. At times, Wechsler suggested Congress will safeguard federalism only insofar as the American people care about federalism. Wechsler, supra note 6, at 547 ("To the extent that federalist values have real significance they must give rise to local sensitivity to central intervention; to the extent that such a local sensitivity exists, it cannot fail to find reflection in the Congress."). In other words, by blurring the distinction between state autonomy and state interests, he anticipated Kramer's critique that his process federalism would protect only geographically concentrated interests, not the formal autonomy of state institutions.
42. supra note 12 and accompanying text.
43. This is why Roderick Hills has argued that "'political process' theories of constitutional federalism are not really theories of federalism at all but theories of judicial review"-they differ from dualist sovereignty-based accounts only with respect to how, not whether, to protect state autonomy.
44. Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 MICH. L. REV. 81, 821 (1998)
45. Heather K. Gerken, Our Federalism(s), 53 WM. & MARY L. REV. 1549, 1556 (2012) ("Both sovereignty and process federalism are theories of federalism. But the core difference between them turns on how best to protect state power, not on what form of state power we ought to be protecting if federalism's ends are to be achieved.")
46. Wechsler's contemporary heirs, who have offered a variety of nuanced accounts that focus on Congress and formal safeguards, similarly champion state-federal separation.
47. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1325 (2001) (arguing that the separation of powers protects federalism in the form of "state governance prerogatives")
48. Vicki Jackson, Federalism and the Uses and Limits of Law: Printz and Principle, 111 HARV. L. REV. 2180, 2228 (1998) ("To make political safeguards of federalism work, some sense of enforceable lines must linger.")
49. Rapaczynski, supra note 22, at 380 (arguing that Garcia's process federalism "is by no means inimical" to National League of Cities's emphasis on state autonomy "despite the seemingly contradictory holdings in these two cases")
50. Young, supra note 4, at 1358 n.42 (arguing that "the independent policymaking authority of state governments" is the "critical variable" for federalism)
51. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 741-42 (2004) (assuming that "federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes" and noting that Congress in particular may appreciate the "intrinsic value of preserving core state regulatory authority").
52. For a critique of Kramer's argument on its own terms, see Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. 1077, 1083-89 & n.18 (2014).
53. Kramer, supra note 2, at 222.
54. Kramer, supra note 13, at 1499 ("[J]ust because it's no longer possible to maintain a fixed domain of exclusive state jurisdiction it's not necessarily impossible to maintain a fluid one.").
55. Galle & Seidenfeld, supra note 17, at 1965-73 (noting that agencies may appreciate the benefits of allowing autonomous state regulation)
56. id. at 1985 ("In preserving local autonomy against a single, national rule, federalism offers citizens with differing preferences the opportunity to craft a local rule that most nearly accords with their values.")
57. Metzger, supra note 17, at 2029 (arguing that administrative agencies are not "ill-suited to protecting state regulatory autonomy"). In other work, Metzger has offered an argument for statefederal integration more congenial to the one I advance here.
58. Gillian E. Metzger, Federalism and Federal Agency Reform, 111 COLUM. L. REV. 1 (2011) (arguing that in certain Supreme Court preemption decisions, federalism serves as a mechanism for enhancing federal agency performance).
59. Galle & Seidenfeld, supra note 17, at 1954-61, 1971-74 (considering interactions between agency and state officials in the notice-and-comment process); Sharkey, supra note 17, at 2149-50 (arguing that agency experts are able to engage with state actors in a "meaningful and substantive way").
60. An important body of scholarship I have omitted from this account is the cooperative federalism literature, which likewise considers states' relationship to federal administration.
61. I have bracketed it thus far because most of the literature focuses on discrete policy areas rather than federalism theory and thus grapples with a different set of questions.
62. Gerken, supra note 23, at 18-19 (noting that cooperative federalism scholarship tends to focus on "improving policymaking in a discrete subject area rather than theorizing about" federalism, and citing relevant scholarship). Key exceptions-some expressly discussing cooperative federalism and some discussing other forms of state-federal concurrency- include works by contributors to this Feature and a handful of other scholars, whose writings I draw on in what follows.
63. ERIN RYAN, FEDERALISM AND THE TUG OF WAR WITHIN (2011)
64. SCHAPIRO, supra note 23
65. Bulman-Pozen, supra note 27
66. Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009)
67. Gerken, supra note 23
68. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534 (2011)
69. Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry, 115 YALE L.J. 1564 (2006)
70. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008). Notably, even some of the most sophisticated thinkers about cooperative federalism programs search within them for state autonomy.
71. Hills, supra note 25 (arguing that state autonomy should be protected in cooperative federalism schemes).
72. JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS 126 (1927) ("Indirect, extensive, enduring and serious consequences of conjoint and interacting behavior call a public into existence having a common interest in controlling these consequences. But the machine age has so enormously expanded, multiplied, intensified and complicated the scope of the indirect consequences... that the resultant public cannot identify and distinguish itself...There are too many publics and too much of public concern for our existing resources to cope with.").
73. I should be clear that I do not mean to deny the possibility of state autonomy or distinctive state interests. There remain areas in which states set policy without the federal government's involvement, and there are interests that are especially resonant in certain states based on demographics, industry, geography, and the like. My argument is a narrower one: that state autonomy and distinctive interests are not the only, or even the most important, components of contemporary federalism, and that administration and politics, in particular, do not safeguard these forms of state-federal separation but rather exert a powerful integrative force.
74. Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 COLUM. L. REV. 459, 498-500 (2012)
75. Gluck, supra note 31 459, 498-500
76. Heinz Eulau, Polarity in Representational Federalism: A Neglected Theme of Political Theory, 3 PUBLIUS 153, 165-70 (1973) (arguing that our federal structure is not a dual structure but a "polar structure" so that there is "no centralization without decentralization")
77. Gillian E. Metzger, Federalism Under Obama, 53 WM. & MARY L. REV. 567, 569 (2011) ("Rather than assertions of federal power at the expense of the states, the central dynamic evident under the Obama administration to date is more active government, at both the national and state level.").
78. MORTON GRODZINS, THE AMERICAN SYSTEM 385 (Daniel J. Elazar ed., Transaction Publishers 1984) (1966) ("The preservation of mild chaos is an important goal for the American federal system.").
79. DANIEL J. ELAZAR, AMERICAN FEDERALISM: A VIEW FROM THE STATES (2d ed. 1972)
80. GRODZINS, supra note 35
81. Bulman-Pozen & Gerken, supra note 31
82. Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. REV. 663 (2001). On concurrent jurisdiction generally.
83. RYAN, supra note 31
84. SCHAPIRO, supra note 23.
85. Moreover, as Abbe Gluck points out, the federal government may design cooperative federalism programs to promote federal power: state administration may be "a specific strategy used by the federal government to strengthen its new federal laws and the federal norms they introduce."
86. Gluck, supra note 31, at 565.
87. 8 U.S.C. § 1357(g) (2012) (immigration); 33 U.S.C. §§ 1251-1387 (2006) (Clean Water Act); 42 U.S.C. § 1396a (2006) (Medicaid); 42 U.S.C. §§ 7401-7642 (2006) (Clean Air Act); 47 U.S.C. § 252(e)(5) (2006) (telecommunications); Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, § 1042(a)(2), 124 Stat. 1376, 2012-14 (2010) (codified at 12 U.S.C. § 5552 (2012)) (financial regulation); Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 1101, 1311, 1321, 124 Stat. 119, 141-43, 173-79, 186 (2010) (to be codified at 42 U.S.C. §§ 18001, 18031, 18041) (healthcare).
88. Bulman-Pozen, supra note 34, at 472-76
89. Gluck, supra note 31.
90. Bulman-Pozen & Gerken, supra note 31.
91. Bulman-Pozen, supra note 34.
92. California may adopt more stringent vehicle emission standards than the federal Environmental Protection Agency if it is granted a waiver, and the statutory scheme makes a waiver grant the default. 42 U.S.C. § 7543 (2006); see H.R. REP. NO. 95-294, at 23 (1977) (noting that the provision "would require the Administrator in most instances to waive the preemption under section 209 of the act with respect to California's standards").
93. Bulman-Pozen, supra note 34, at 480-81, 487, 489-90.
94. Arizona v. United States, 132 S. Ct. 2492 (2012).
95. Appellants' Opening Brief at 1-2, United States v. Arizona, 641 F.3d 339 (9th Cir. 2010) (No. 10-16645) ("The Department of Homeland Security ('DHS') has demonstrated its inability (or unwillingness) to enforce the federal immigration laws effectively. The Act's primary purpose, therefore, is to enhance the assistance Arizona and its law enforcement officers provide in enforcing federal immigration laws. The Arizona Legislature carefully crafted the Act to ensure that Arizona's officers would do so in compliance with existing federal laws.... The fundamental premise of the United States' argument is that DHS has exclusive authority to determine whether and to what extent it may receive assistance from state and local authorities in the enforcement of federal immigration laws. The United States' position, however, is contradicted by express directives from Congress...")
96. Bulman-Pozen, supra note 34, at 490-91.
97. On the integration of state and federal immigration regulation generally, see Cristina M. Rodríguez, The Integrated Regime of Immigration Regulation, in WRITING IMMIGRATION: SCHOLARS AND JOURNALISTS IN DIALOGUE 44 (Marcelo M. Suárez-Orozco et al. eds., 2011).
98. Other examples of such claims abound. In a case pending before the Supreme Court this Term, for instance, a group of states is arguing that the EPA's Transport Rule, which imposes emissions reduction responsibilities on upwind states based on their contributions to downwind states' air quality problems, violates the Clean Air Act. See EPA v. EME Homer City Generation, L.P., Nos. 12-1182 & 12-1183 (U.S. argued Dec. 10, 2013). Instead of offering arguments about federal encroachment on state authority as such, these challenger states are fighting with the EPA about the meaning of the Clean Air Act, insisting that they are attempting to comply with the statute while the EPA flouts Congress's instruction. See Brief for the State and Local Respondents, EME Homer City Generation, Nos. 12-1182 & 12- 1183.
99. As Abbe Gluck's work illuminates, recognizing a federalism that comes at the "grace of Congress" also helps us to think differently about the interpretive doctrines of legislation and administrative law.
100. Gluck, supra note 31, at 542
101. Abbe R. Gluck, Our [National] Federalism, 123 YALE L.J. 1996 (2014).
102. BRUCE ACKERMAN, THE DECLINE AND FALL OF THE AMERICAN REPUBLIC (2010)
103. PETER M. SHANE, MADISON'S NIGHTMARE: HOW EXECUTIVE POWER THREATENS AMERICAN DEMOCRACY (2009)
104. Martin Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725 (1996)
105. Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123 (1994)
106. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314 (2006).
107. Corwin, supra note 1, at 2.
108. 42 U.S.C. § 7408(a)(1)(A) (2006). But cf. Massachusetts v. EPA, 549 U.S. 497 (2007) (holding that the EPA has authority under the Clean Air Act to regulate greenhouse gas emissions and must decide whether to regulate such emissions based on whether they contribute to climate change, not other prudential and policy considerations).
109. Arizona v. United States, 132 S. Ct. 2492, 2521 (2012) (Scalia, J., dissenting) ("[T]o say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.")
110. Adam B. Cox, Enforcement Redundancy and the Future of Immigration Law, 2012 SUP. CT. REV.31, 33 (noting that the Arizona decision "consolidates tremendous immigration policymaking power in the executive branch, endorsing the idea that immigration law is centrally the product of executive 'lawmaking' that bears little relation to immigration law on the books").
111. For more on these alignments and some thoughts on the real axis of division, see the discussion of partisanship, infra Section III.A.
112. No doubt some officials feared public backlash from opposing Arizona's law. Indeed, some commentators predicted that the state law would achieve its main effects by making the federal executive branch enforce federal immigration law more aggressively than it wished to: once the state had brought to federal officials' attention an unlawfully present individual and enlisted federal cooperation in confirming the individual's status, they argued, it would be difficult for the Department of Homeland Security (DHS) to look the other way.
113. United States v. Arizona, 641 F.3d 339, 379 & n.12 (9th Cir. 2010) (Bea, J., concurring in part and dissenting in part). It turned out not to be political suicide for DHS to look the other way with respect to Arizona's calls, however, and the Obama Administration went further, announcing a policy of looking the other way for "dreamers" throughout the country.
114. U.S. Citizenship & Immigration Servs., I Am a Young Person Who Arrived in the United States as a Child (Childhood Arrival), U.S. DEP'T HOMELAND SECURITY (2012), http://www.uscis.gov/USCIS/Resources/daca.pdf.
115. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 COLUM. L. REV. 265, 267 (2013).
116. Id. at 268.
117. 20 U.S.C. § 6311 (2012).
118. 20 U.S.C. § 7861(a).
119. Martin A. Kurzweil, Disciplined Devolution and the New Education Federalism (Sept. 25, 2013) (unpublished manuscript) (on file with author); ESEA Flexibility, U.S. DEP'T EDUC., http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html (last visited Jan. 15, 2014).
120. 42 U.S.C. § 18052(a) (Supp. IV 2011). The waiver provision reaches the individual mandate and the sections of the ACA concerning health care insurance exchanges and the minimum coverage of acceptable plans, among other things.
121. Vermont has passed legislation to create a single-payer system that would become effective, pursuant to an ACA waiver, in 2017.
122. Jessica Marcy, Vermont Edges Toward Single Payer Health Care, KAISER HEALTH NEWS (Oct. 2, 2011), http://www.kaiserhealthnews.org/stories/2011/october/02/vermont-single-payer-health-care.aspx.
123. Robert Pear, Four States Get Waivers to Carry Out Health Law, N.Y. TIMES, Feb. 16, 2011, http://www.nytimes.com/2011/02/17/health/policy/17health.html (noting that Florida, New Jersey, Ohio, and Tennessee received waivers allowing insurance companies to continue providing limited benefit and mini-med plans)
124. Julian Pecquet, Maine Gets First State Waiver from Healthcare Law Provision, THE HILL (Mar. 8, 2011, 9:26 PM), http://thehill.com/blogs/healthwatch/health-reform-implementation/148179-maine-gets-reprieve-from-health-reform-insurance-requirement (discussing waiver from ACA provision requiring insurers to spend at least eighty percent of premiums on care).
125. Samuel R. Bagenstos, Federalism by Waiver After the Health Care Case, in THE HEALTH CARE CASE 227 (Nathaniel Persily et al. eds., 2013)
126. Bulman-Pozen & Gerken, supra note 31, at 1274-76
127. Theodore W. Ruger, Health Policy Devolution and the Institutional Hydraulics of the Affordable Care Act, in THE HEALTH CARE CASE, supra, at 359, 366-69. Even the examples offered above of states serving as a shadow executive branch often involve state lawmaking. The Clean Air Act, for instance, confers authority on California to act via waiver, and it was the state legislature that directed the California Air Resources Board to promulgate regulations concerning greenhouse gas emissions under the Clean Air Act. See CAL. HEALTH & SAFETY CODE § 43018.5 (West 2002).
128. Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267 (1998) (advocating for subnational experimentation with regional and national oversight)
129. Charles F. Sabel & William H. Simon, Minimalism and Experimentalism in the Administrative State, 100 GEO. L.J. 53 (2012) (arguing that the federal government should grant discretion to local administrative units while assessing their performance to induce continuous learning).
130. S. Amdt. 2837, 111th Cong. (as introduced Dec. 2, 2009), 155 CONG. REC. 29130 (2009)
131. H.R. 676, 111th Cong. (2009) (proposing to cover all individuals in the United States under the Medicare for All Program).
132. Ezra Klein, Sen. Bernie Sanders: "Vermont Stands a Chance to Be the First State in the Nation to Pass Single-Payer," WASH. POST: EZRA KLEIN (Nov. 18, 2010, 2:54 PM), http://voices.washingtonpost.com/ezra-klein/2010/11/sen_bernie_sanders_vermont_sta.html
133. S. Amdt. 2846, 111th Cong. (as introduced Dec. 2, 2009); 155 CONG. REC. 29216 (2009) (proposing to allow state waivers as of 2014).
134. In the States, COMMON CORE STATE STANDARDS INITIATIVE, http://www.corestandards.org/in-the-states (last visited Jan. 15, 2014)
135. Peter Wallsten & Lyndsey Layton, Tea Party Groups Mobilizing Against Common Core Education Overhaul, WASH. POST, May 30, 2013, http://articles.washingtonpost.com/2013-05-30/politics/39627200_1_tea-party-groups-common-core-state-standards-governors.
136. TANF-ACF-IM-2012-03 (Guidance Concerning Waiver and Expenditure Authority Under Section 1115), U.S. DEP'T HEALTH & HUM. SERVICES (July 12, 2012), http://www.acf.hhs.gov/programs/ofa/resource/policy/im-ofa/2012/im201203/im201203.
137. Sahil Kapur, GOP Governors Attack Obama's Welfare Waivers After Requesting Flexibility, TPM (Aug. 28, 2012, 4:47 PM), http://tpmdc.talkingpointsmemo.com/2012/08/gary-herbert-brian-sandoval-welfare-waivers-romney.php. The dispute was a partisan one: Republican presidential candidate Mitt Romney had made welfare reform waivers a piece of his campaign against Barack Obama shortly before the two governors changed their tune.
138. For more on partisanship's role in our federal system, see infra Section III.A.
139. Bagenstos, supra note 62, at 239 ("Given the erosion of private rights of action and the extremely limited (at best) judicial review of an agency's failure to take enforcement action, there is likely to be no effective legal check on an agency that is bound and determined to resist the requirements Congress has imposed on states that receive federal funds. The most effective checks are likely to be political. And a waiver regime, honestly engaged, can provide the opportunity for political debate, contestation, and accountability.")
140. Barron & Rakoff, supra note 52 (defending big waiver); Ruger, supra note 62, at 369-71 (arguing that the federal executive has incentives to tolerate state variation in the administration of major social programs).
141. David P. Currie, The Distribution of Powers After Bowsher, 1986 SUP. CT. REV. 19, 19
142. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603, 624-25 (2001) (ultimately rejecting this approach as unsatisfying).
143. For accounts richly complicating the categories of "state" and "national" interests generally
144. Gerken, supra note 23
145. Resnik, supra note 2
146. Rodríguez, supra note 31.
147. In the pending Clean Air Act case EPA v. EME Homer City Generation, L.P., see supra note 44, the partisan lineup is reversed: now it is a Democratic federal administration attempting to regulate more aggressively, while a group of Republican-led states challenges this action, and a group of overwhelmingly Democratic-led states supports the federal agency. See Brief for the State and Local Respondents, EPA v. EME Homer City Generation, L.P., Nos. 12- 1182 & 12-1183 (U.S. argued Dec. 10, 2013) (representing challenger states Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, and Wisconsin); Brief for the States of New York et al. as Respondents in Support of Petitioners, EME Homer City Generation, Nos. 12-1182 & 12-1183 (representing Connecticut, Delaware, Illinois, Maryland, Massachusetts, New York, North Carolina, Rhode Island, Vermont, and the District of Columbia in support of the EPA).
148. Pratheepan Gulasekaram & S. Karthick Ramakrishnan, Immigration Federalism: A Reappraisal, 88 N.Y.U. L. REV. 2074 (2013) (arguing that state immigration laws are not responses to regionally specific policy concerns but rather the result of partisan entrepreneurialism).
149. Wallsten & Layton, supra note 66.
150. Valerie Strauss, Common Core Standards Attacked by Republicans, WASH. POST: ANSWER SHEET (Apr. 19, 2013, 4:00 AM), http://www.washingtonpost.com/blogs/answer-sheet/wp/2013/04/19/common-core-standards-attacked-by-republicans (quoting a Republican National Committee resolution opposing the Common Core as "an inappropriate overreach to standardize and control the education of our children so they will conform to a preconceived 'normal'" and a letter from Senator Charles Grassley proposing to remove federal funding for state adoption of the Common Core).
151. Robert N. Weiner, Much Ado: The Potential Impact of the Supreme Court Decision Upholding the Affordable Care Act, in THE HEALTH CARE CASE, supra note 62, at 69, 69-72 (describing the partisan lineup in the ACA litigation).
152. Bulman-Pozen, supra note 27.
153. Sometimes, as with environmental law, regulatory concurrency is full-blown. Other times, as with immigration, the federal government is the dominant actor, but states have a credible enough claim to regulatory authority to test the boundaries, and the very blurriness of these boundaries facilitates substantive debate.
154. Bulman-Pozen, supra note 27, at 1083-1108.
155. Cristina M. Rodríguez, Negotiating Conflict Through Federalism: Institutional and Popular Perspectives, 123 YALE L.J. 2094, 2100 (2014) (arguing that we must "de-center[] the national from the federal" and recognize that "state and local debate and regulation can serve national interests").
156. Bulman-Pozen, supra note 27, at 1083-1108.
157. id. at 1108-22, 1130-35.
158. Donald Green et al., PARTISAN HEARTS AND MINDS (2002)
159. NANCY L. ROSENBLUM, ON THE SIDE OF THE ANGELS (2008)
160. Thomas M. Carsey & Geoffrey C. Layman, Changing Sides or Changing Minds? Party Identification and Policy Preferences in the American Electorate, 50 AM. J. POL. SCI. 464 (2006)
161. Paul Goren, Party Identification and Core Political Values, 49 AM. J. POL. SCI. 881 (2005).
162. Zachary P. Hohman et al., Identity and Intergroup Leadership: Asymmetrical Political and National Identification in Response to Uncertainty, 9 SELF & IDENTITY 113, 122-23 (2010) (finding that Democrats' national identity is threatened by a Republican president, and vice versa).
163. Green et al., supra note 83, at 83, 219
164. Bulman-Pozen, supra note 27, at 1130-35 (considering the possibility of identifying with states one does not inhabit).
165. Bulman-Pozen, supra note 27, at 1118.
166. DAVID WALDSTREICHER, IN THE MIDST OF PERPETUAL FETES: THE MAKING OF AMERICAN NATIONALISM, 1776-1820, at 246-93 (1997) (arguing that in the early Republic, regional parties contested particular federal policies while claiming to represent the real United States).
167. SACVAN BERCOVITCH, THE RITES OF ASSENT: TRANSFORMATIONS IN THE SYMBOLIC CONSTRUCTION OF AMERICA (1992) (describing an American ideology that privileges dissent as a distinctly American form of consensus).
168. David B. Truman, Federalism and the Party System, in FEDERALISM: MATURE AND EMERGENT 115, 125 (Arthur W. MacMahon ed., 1955) ("The separate political existence of the states... provides effective access to the whole governmental structure for interest groups whose tactics may be local or sectional but whose scope is national.")
169. Rapaczynski, supra note 22, at 388 ("[T]he existence of effective local authorities is an independent factor in allowing certain vital interests to organize.")
170. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008) (considering how translocal organizations of government actors import and export law across state and national boundaries).
171. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1 (2007) (exploring the interaction between state and federal lawmaking and especially the ways states can drive Congress's agenda).
172. Dan Smith, The Initiative to Party: The Role of Political Parties in State Ballot Initiatives, in INITIATIVE-CENTERED POLITICS: THE NEW POLITICS OF DIRECT DEMOCRACY 97 (David McCuan & Stephen Stambough eds., 2005)
173. Ethan J. Leib & Christopher S. Elmendorf, Why Party Democrats Need Popular Democracy and Popular Democrats Need Parties, 100 CALIF. L. REV. 69 (2012) (arguing that party democracy and popular democracy should be brought into "pragmatic symbiosis").
174. Kathleen Ferraiolo, From Killer Weed to Popular Medicine: The Evolution of American Drug Control Policy, 1937-2000, 19 J. POL'Y HIST. 147, 162-68 (2007).
175. Medical Marijuana, PROCON.ORG, http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881 (last updated Dec. 13, 2013) [hereinafter Medical Marijuana].
176. Ferraiolo, supra note 90, at 162 (noting that Americans for Medical Rights was "behind nearly all of the successful initiative efforts")
177. Our History, MARIJUANA POL'Y PROJECT, http://www.mpp.org/about/history.html (last visited Jan. 15, 2014) (touting MPP's involvement in various initiative contests).
178. Resnik et al., supra note 88, at 726-28 (arguing that we should "reappraise the propriety of conceiving of states in the singular rather than appreciating their role as a collective national force").
179. Officers & Staff, NEW APPROACH WASH., http://www.newapproachwa.org/content/staff (last visited Jan. 15, 2014) (stating that the campaign director was "on loan" from her position at the ACLU).
180. New Approach Washington, NAT'L INST. ON MONEY IN STATE POL., http://www.followthemoney.org/database/StateGlance/committee.phtml?c=12263 (last visited Jan. 15, 2014) (analyzing contributions by geographic location and characterizing 64.8% of the money contributed to the committee as "Out of State").
181. John Ingold, Colorado Marijuana-Legalization Amendment Spending Tops $3 Million, DENVER POST, Oct. 21, 2012, http://www.denverpost.com/ci_21820068/colorado-marijuana-legalization-amendment-spending-tops-3-million ("Both sides report receiving more financial support from outside the state than from inside it."). In total, committees supporting the amendment raised nearly $3.5 million, of which more than $3.2 million came from out-of-state sources. Amendment 64: Legalizing Marijuana, NAT'L INST. ON MONEY IN STATE POL., http://www.followthemoney.org/database/StateGlance/ballot.phtml?m=956 (last visited Jan. 15, 2014). On staffing, compare, for example, John Ingold, Colorado Marijuana Activists Buttoned Down to Win Legalization Measure, DENVER POST, Nov. 11, 2012, http://www.denverpost.com/ci_21973903/colorado-marijuana-activists-buttoned-down-win-legalization-measure, with Staff, NAT'L CANNABIS INDUSTRY ASS'N, http:// thecannabisindustry.org/staffs/staff (last visited Jan. 15, 2014).
182. In addition to furnishing a model that may be adopted elsewhere, state initiatives also affect how federal law is carried out in the shorter term. While state legalization of marijuana does not remove the federal prohibition contained in the Controlled Substances Act, it does limit federal law's enforcement, both because state officers have traditionally made ninety-nine percent of all marijuana arrests under either state or federal law and because the federal government has elected to defer to state legalization decisions to some extent. See Memorandum from James M. Cole, Deputy Att'y Gen., to all United States Att'ys 2 (Aug. 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf (noting that "the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws," and stating that the federal government will not devote resources to enforcing the federal prohibition on marijuana as a general matter in states that have legalized the drug); see also Jessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms, 85 U. COLO. L. REV. (forthcoming 2014).
183. Mark Tushnet, What Then Is the American?, 38 ARIZ. L. REV. 873, 877 (1996).
184. Will Evans, Prop 37 Donors Revealed: From Monsanto & Hershey to Controversial Alternative Health Doctor, HUFFINGTON POST (Nov. 2, 2012, 2:07 PM), http://www.huffingtonpost.com/2012/11/02/prop-37-donors-revealed-f_n_2065789.html ("[M]ajor food and biotechnology companies... have poured more than $44 million into the fight against [California's] Prop. 37."); Cash Contributions for: Yes on I-522 Comm, PUB. DISCLOSURE COMMISSION, http://www.pdc.wa.gov/MvcQuerySystem /CommitteeData/contributions?param=WUVTNTIyIDEwMQ%3D%3D%3D%3D&year= 2013&type=initiative (last visited Jan. 15, 2014) (listing contributions to the main committee sponsoring Washington's GMO-labeling initiative).
185. On the operation of networked interests beyond the direct democracy context, see, for example, Resnik, supra note 31; Resnik et al., supra note 88; and Rodríguez, supra note 80.
186. Medical Marijuana, supra note 91.
187. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 316 (1985) (discussing "preemptive federalization," a process by which industry groups "attempt to counter the organizational successes of environmentalists at the state level" by pushing for preemptive federal lawmaking); Hills, supra note 88 (arguing that states can disrupt Congress's tendency to avoid politically sensitive issues by passing their own laws and provoking business interests to seek preemptive federal legislation).
188. Corwin, supra note 1, at 23.