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Redefining Federalism: Listening to the States in Shaping “Our Federalism”

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Redefining Federalism: Listening to the States in Shaping “Our Federalism” Redefining Federalism: Listening to the States in Shaping “Our Federalism” Douglas T. Kendall, editor contributing authors: Jay E. Austin Jennifer Bradley Timothy J. Dowling Douglas T. Kendall James E. Ryan Jason C. Rylander Environmental Law Institute Washington, D.C. Copyright © 2004 Environmental Law Institute 1616 P Street NW, Washington, DC 20036 Published November 2004. Printed in the United States of America ISBN 1-58576-086-2 Redefining Federalism: Listening to the States in Shaping “Our Federalism” Table of Contents EDITOR’S NOTE ........................v CONTRIBUTING AUTHORS .................ix CHAPTER 1: Redefining Federalism....................1 ________________ PART ONE CHAPTER 2: Federalism and Environmental Protection ...........9 CHAPTER 3: Federalism as a Neutral Principle ..............21 ________________ PART TWO CHAPTER 4: Federalism as Libertarian Fantasy ..............31 CHAPTER 5: The Rise of Libertarian Federalism .............51 iii REDEFINING FEDERALISM ________________ PART THREE CHAPTER 6: The Voice of the States: An Overview ............61 CHAPTER 7: Overprotecting Federalism Under the Commerce Clause . 65 CHAPTER 8: Limiting State Experimentation Under the “Dormant” Commerce Clause .....................79 CHAPTER 9: Stifling Federalism Under the Supremacy Clause .......95 CHAPTER 10: Sovereign Immunity and the Fourteenth Amendment ....105 CHAPTER 11: Preventing Commandeering Under the Tenth Amendment . 125 ________________ CHAPTER 12: Conclusion ........................137 ENDNOTES .........................139 INDEX ............................173 iv Editor’s Note his book is the result of collaboration in the best sense of the word. I Thave been joined in this enterprise by five contributing authors with enormous talents, each of whom has made an unmistakable and ir- replaceable contribution to the final product. While the contributing au- thors each added ideas to the entire volume, they drafted different por- tions and these drafting accomplishments warrant specific note. In Parts One and Two of the book, Jennifer Bradley drafted the chapter entitled Federalism and Environmental Protection; Jim Ryan drafted Federal- ism as Libertarian Fantasy; and Jason Rylander drafted The Rise of Lib- ertarian Federalism. Part Three of the book, Listening to the States, was written by Tim Dowling and Jay Austin, with Tim drafting the chapters on the Commerce Clause, §5 of the Fourteenth Amendment, the Tenth Amendment, and preemption, and Jay writing the chapters on the Elev- enth Amendment and the “dormant” Commerce Clause. In my role as contributing author, I wrote the Introduction, Conclusion, and the chap- ters entitled Federalism as a Neutral Principle and The Voice of the States: An Overview. The book’s approach is somewhat novel in that it attempts to meld the contributions of six contributing authors into a single, coherent, and persuasive argument in favor of the vision of federalism being ad- vanced in U.S. Supreme Court cases by the states. The result differs from a collection of essays, in that the authors were not free to choose their own topics—thus it would not be accurate to assume that each au- thor agrees with everything in the book. The book differs from a true coauthorship in that little effort was made to make the work read in a single narrative voice. As editor, I have tried to eliminate inconsisten- cies and redundancies, and provide necessary summaries and transi- tions, but I have not attempted to strip the individual sections of the dis- tinct writing styles of their contributing authors. I believe this makes the book both more interesting and more persuasive, but that, ulti- mately, is for the reader to judge. The book’s approach is unusual also because we have, in Part Three, attempted to distill from the Court briefs filed by state attorneys gen- eral what we term the “voice of the states.” We explain our methodol- ogy in more detail in later parts of the book, but two points warrant v REDEFINING FEDERALISM highlighting here. First, the term “voice of the states” is shorthand, and in one sense a misnomer: the 50 states almost never speak together in one voice. More precisely, when we use the term we are referring to the consensus, or, in a few cases, the majority position of the states that weigh in on a particular issue. Second, we are describing in Part Three the positions the states have taken in important recent federalism cases, not the positions we neces- sarily wish they had taken on particular issues. Collectively, we believe that the views advanced by the states provide the Court with a compel- ling alternative vision to its existing federalism jurisprudence. On cer- tain individual issues, the authors do not necessarily agree with the posi- tion taken by the states, but we have not burdened this book with the weight of these personal beliefs. We have set out to describe the voice of the states, and we have done so even where we might wish the states’ message was different. Finally, as with any book on a topic as large as constitutional federal- ism, we have necessarily been selective in the topics we are able to cover. We have taken as our focus what we believe are the key constitutional questions affecting the distribution of governmental authority between the federal government and the states. Thus, while interpretations of in- dividual liberties guaranteed by the Bill of Rights and other parts of the U.S. Constitution can prevent state experimentation in large areas, these topics are not discussed here because these limitations apply to all levels of government. Similarly, books could be and have been written on fed- eralism and 28 U.S.C. §1983, which provides a cause of action for indi- viduals to sue state officials for violations of federal law. While the enforceability of federal law against the states is a very important issue of federalism, the law of §1983 is at bottom an issue of statutory, not con- stitutional, law, and thus outside this book’s focus. There are, finally, some important doctrines of constitutional federalism, including the choice of law rules of Erie Railroad v. Thomkins, which are not dis- cussed here simply because they are well settled and not particularly controversial among the current Justices. The authors would like to thank: Eldon Crowell, Richard Fallon, Si- mon Lazarus, Sean Maloney, and John Nolon for their very helpful com- ments on drafts of this book; Leah Doney Neel for her careful and tire- less editing and proofreading; Joseph Kakesh for invaluable research assistance; and John Turner and the entire publishing staff at Environ- mental Law Institute for their belief in the book and their hard work in bringing it into print. Last but far from least, we would like to thank the foundations, including the Soros Foundation’s Open Society Institute, vi EDITOR’S NOTE the Surdna Foundation, the Public Welfare Foundation, the Charles Evans Hughes Memorial Trust, the Naomi and Nehemiah Cohen Foundation, the David and Lucile Packard Foundation, the William and Flora Hewlett Foundation and the Town Creek Foundation, which have provided direct or general support for CRC and ELI’s work on this book. John Kowal of the Open Society Institute deserves special mention: this book would not have happened without his belief in the project and the work of both Community Rights Counsel and Environ- mental Law Institute. —Doug Kendall, editor vii Contributing Authors Jay E. Austin is a Senior Attorney at the Environmental Law Institute (ELI) and Director of ELI’s Endangered Environmental Laws Program, which focuses on federalism issues. He has worked extensively in the Insti- tute’s domestic and international programs, and authored or coauthored nu- merous ELI research reports and articles in the Environmental Forum, the Environmental Law Reporter, and other journals. Mr. Austin received his undergraduate degree from Michigan State University and law degree from the University of Virginia, where he was a Hardy Cross Dillard Scholar and Articles Development Editor of the Virginia Law Review. Jennifer Bradley is the Federalism Project Director at Community Rights Counsel (CRC). Prior to joining CRC, Ms. Bradley was a senior policy ana- lyst at the Brookings Institution’s Center on Urban and Metropolitan Policy, where she worked on metropolitan development and urban sprawl issues. A former journalist, Ms. Bradley has written for The New Republic, the Atlan- tic Monthly, the American Prospect, and the Washington Monthly. She graduated magna cum laude from Georgetown University Law Center. Ms. Bradley holds a master’s degree from Oxford University and a bachelor’s degree from the University of Texas. Timothy J. Dowling is Chief Counsel of Community Rights Counsel (CRC). As head of CRC’s litigation program, Mr. Dowling has represented state and local government clients in appellate courts around the country, with special emphasis on challenges under the Takings, Supremacy, and Commerce Clauses. He is coauthor of CRC’s Takings Litigation Hand- book: Defending Takings Challenges to Land Use Regulations (American Legal Publishing 2000), and has written numerous articles. Be- fore joining CRC, Mr. Dowling worked at the U.S. Department of Justice, where he received the Attorney General’s John Marshall Award for Out- standing Legal Achievement. Prior to his public service, he worked at the law firm of Hogan & Hartson. Mr. Dowling received his law degree from Georgetown University Law Center, where he served as an editor of the Georgetown Law Journal, and his undergraduate degree from the Univer- sity of Notre Dame. ix REDEFINING FEDERALISM Douglas T. Kendall is Community Rights Counsel’s (CRC’s) founder and Executive Director. As CRC’s Executive Director, he has represented state and local government clients in constitutional cases in state and federal ap- pellate courts around the country and before the U.S. Supreme Court. He is widely published in outlets ranging from the Virginia Law Review,tothe Environmental Law Reporter, to the opinion page of the Washington Post. Mr. Kendall is coauthor of Takings Litigation Handbook: Defending Takings Challenges to Land Use Regulations (American Legal Publishing 2000).
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