Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the interjurisdictional gray area that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism\u27s strict-separationist model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism\u27s subsidiarity principle (that regulatory decision making should take place at the most local level possible). The progression of federalism models informing Supreme Court interpretation over the 20th century reflects a pendulum-like attempt to reach the proper balance between these competing values. Although the Court\u27s federalism jurisprudence during the New Deal era prioritized the problem-solving value over the check-and-balance anti-tyranny value, the New Federalism decisions exalt the check-and-balance value at the expense of the problem-solving (and all other) values, protecting the bright line posited between mutually exclusive spheres of state and federal regulatory authority. Interjurisdictional problems uncomfortably blur that boundary, pitting problem-solving and checks-and-balances against one another by demanding both local and national regulatory attention. But it is arguably the tension between these values that has made our system of government so robust-enabling it to adjust for changing demographics, technologies, and expectations without losing its essential character. The New Federalism\u27s focus on checks and balances above all else compromises its ability to effectively mediate this critical competition, sacrificing other federalism values and obstructing even desirable regulatory activity in the interjurisdictional gray area (such as federal initiative that might have been taken in the wake of Katrina). The comparatively pragmatic cooperative federalism model affords some balance, but is critiqued by New Federalism proponents as providing insufficient checks. To remedy the theoretical problems left unresolved by cooperative federalism and the pragmatic ones caused by New Federalism, this Article argues that the Court should adopt a model of Balanced Federalism that better mediates between competing federalism values and provides greater guidance for regulatory decision making in the interjurisdictional gray area. Where the New Federalism asks the Tenth Amendment to police a stylized boundary between state and federal authority from crossover by either side, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity within the gray area for impermissible compromises of fundamental federalism values. The Article concludes by introducing the outlines of a jurisprudential standard for interpreting Tenth Amendment claims within a model of Balanced Federalism dual sovereignty that affords both checks and balance. Such a framework would foster a healthier dialectic between the various federalism values that, though in tension with one another, have made our system of government so effective and enduring