The Roberts Court and Penumbral Federalism

Abstract

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts — which derive from a “penumbral” reading of the Tenth Amendment — represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its theoretical basis, the article explores the approach’s prudential appeal: penumbral federalism is a pragmatic negotiation that works to maintain some semblance of federalism in an age when pragmatism has pressured even formalist and conservative judges to accept federal regulatory primacy. By framing the most important Roberts Court decisions in penumbral federalism terms, the article reveals the method to the seeming madness: they are the logical fruits of intellectual seeds planted in Rehnquist Court decisions.

Keywords: federalism, pragmatism, sovereign immunity, anti-commandeering, shelby county, windsor, equal sovereignty