The Federalis(m) Society

7 Pages Posted: 31 Mar 2013

Date Written: 2013

Abstract

This paper offers a friendly suggestion to those who believe, in federalism. Most people who care about state power are thinking about it in the wrong way. At the very least, most are ignoring what may be the most important source of state power in the twenty-first century, one that will only become more salient as time goes on. Cooperative federalism is where the action is. It is where the future is. And if you care about state power, it might be useful to devote some of the massive intellectual energy now spent on the well-worn sovereignty-process debate to thinking about how to ensure that states retain an important role in state-federal governance going forward.

Sovereigntists tend to dismiss cooperative federalism as a sport. But the role that states play in so-called “cooperative federalism” regimes gives them a great deal of power to interpret, influence, even resist federal mandates. This form of power will not seem entirely satisfactory to those who subscribe to the sovereignty model, who believe that states should preside over their own empires. But in this day and age, the real question is this: Given the many areas where the federal government now plays a substantial regulatory role, should the States want to be in the game or on the sidelines? Should state officials prefer to administer the burgeoning federal empire rather than preside over second-rate empires of their own? So, too, if you worry about the growth of the Fourth Branch shouldn’t you be thinking creatively about the ways that states can play the same role inside federal administration as they now play outside of it?

Keywords: Federalism, Affordable Care Act, Sibelius, health care, cooperative federalism, uncooperative federalism, state power, autonomy

Suggested Citation

Gerken, Heather, The Federalis(m) Society (2013). Harvard Journal of Law and Public Policy, Vol. 36, No. 3, 2013, Yale Law School, Public Law Working Paper No. 283, Available at SSRN: https://ssrn.com/abstract=2242199

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
169
Abstract Views
1,695
Rank
319,049
PlumX Metrics