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3. The Puzzling Persistence of Dual Federalism
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34 3 THE PUZZLING PERSISTENCE OF DUAL FEDERALISM ERNEST A. YOUNG It may seem strange that, more than sixty years after Edward Corwin famously lamented “The Passing of Dual Federalism,”1 this essay is part of a panel organized under the title “Against Dual Federalism.” Accusations that the Court was trying to revive federalism were commonplace in the early years of the Rehnquist Court’s “federalist revival.” I argued more than a decade ago that these charges were misplaced, and that the actual doctrines that the Court was articulating in cases like United States v. Lopez2 and Printz v. United States3 could not really fit into the rubric of dual federalism.4 It is not that I’m surprised to find that my counsel has not been universally heeded; I have, after all, two teenage children . But I would think that by now the Court has made clear that it does not mean to impose particularly significant limits on the Commerce Clause,5 much less to bring back the entire dual federalist regime. Dual federalism remains hardly less dead than it was the day after the Court decided Wickard v. Filburn6 —a case that the Rehnquist Court repeatedly went out of its way to reaffirm and that the Roberts Court has not questioned. Part of the problem is that not everyone means the same thing by “dual federalism.” The legal literature on federalism uses the term to describe a particular model of allocating functions between the national government and the states, characterized by an The Puzzling Persistence of Dual Federalism 35 attempt to define separate and exclusive spheres for national and state action.7 That model, I shall argue, is largely dead insofar as it operates as a check on national action; it survives, in a somewhat softer form, as a check on state action. But the latter aspect—dual federalism as a way of protecting national authority from incursions by the states—is not what generally concerns dual federalism ’s critics. Those critics frequently equate “dual federalism” with any effort to impose constitutional federalism–based limitations on national authority. In the essay to which this commentary responds, for example, Sotirios Barber contrasts dual federalism with “Marshallian federalism,” which he takes to be equivalent to the managerial “decentralization” model long advocated by Malcolm Feeley and Edward Rubin.8 This sort of position objects not only to a “separate spheres” model but to any model of federalism featuring guarantees of state autonomy that are constitutionally entrenched. Conflating concepts in this way, however, tends not only to confuse discussion but also to obscure the reasons that some approaches to federalism fail while others have more staying power. This essay considers two ways in which notions of dual federalism persist. The first is the tendency of commentators to insist that the Supreme Court is bent on reviving strict dual federalist limits on national power, even when what the Court actually says and does makes rather clear that it is not. This persistence, in other words, is in the minds of the Court’s critics—including Professor Barber, in his essay for this book. The second mode of persistence, however, is reflected in the Court’s rhetoric and doctrine. That is the use of dual federalist notions to limit state power, by defining distinct and exclusive spheres of national regulatory activity. In preemption cases, for example, courts have found state law more readily preempted when it intrudes on a sphere of uniquely national concern, such as foreign relations or immigration. I contend that the Court’s critics are right to condemn dual federalism , but wrong to think that the Court has revived dual federalist limits on national power. Properly defined, “dual federalism ” connotes separate and exclusive spheres of state and federal authority; it thus exists in contrast to other models of federalism, such as “cooperative” federalism, “collective action” federalism, [54.226.25.246] Project MUSE (2024-03-19 11:28 GMT) 36 Ernest A. Young and “process” federalism. All of these models may rely on principles of dual sovereignty—that is, the broader notion that guarantees of state autonomy vis-à-vis the center should be constitutionally entrenched. While the Rehnquist and Roberts Courts have revived this broader principle, they have not attempted to define a separate sphere of state authority that the national government cannot enter. Dual federalism died in the middle of the twentieth century because the Court found itself unable to draw determinate lines to define the exclusive sphere of state authority...