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Ryan on Federalism & Katrina

By Lawrence Solum

Erin Ryan (William & Mary Law School) has posted How the New Federalism Failed Katrina Victims (LAW AND RECOVERY FROM DISASTER: HURRICANE KATRINA, Robin Malloy & John Lovett, eds., 2009) on SSRN. Here is the abstract:

This book chapter explores the Katrina response effort to illustrate the governmental decision-making that operates in the shadow of the interpretive model of federalism in use by courts and policymakers.

In the American federal system, citizens are of both the United States and the individual states in which they reside, and subject to the respective laws of each. The Constitution enumerates those powers under which the federal government is authorized to make law, and the states may regulate in any area not preempted by legitimate federal law. Yet the fact that Americans are citizens of two separate sovereigns does not resolve the precise contours of the relationship between the two. Constitutional analysis reveals pockets of textual ambiguity that must be resolved by application of some interpretive federalism theory - a model that describes how the federal system should work. Even within a single structural polity like the U.S., then, conceptual variation may exist in construing the details of the relationship between sovereigns and the framework of federalism designed to protect it.

This has been aptly demonstrated by the U.S. Supreme Court?s ongoing experimentation with federalism constraints, in pursuit of its evolving vision of the dual sovereignty that is mandated but incompletely described by the Constitution. American dual sovereignty is implied in various provisions that refer to the separate states, but most encapsulated as a constitutional directive in the Tenth Amendment - which establishes that the Constitution (1) delegates some powers to the federal government, (2) prohibits some to the states, and (3) reserves powers that fit in neither of these two sets to the states (or perhaps the people). Standing alone, its only unique contribution is to suggest that there are at least some unspecified powers that belong wholly to the states. But it does not specify what these are; we can only parse them out by negative inference to other constitutional provisions that specifically delegate federal authority or proscribe state action. It further affirms that the Constitution delegates some authority to the federal government, and, read together with the Supremacy Clause, suggests that at least some is wielded exclusively at the federal level, preempting contrary state law.

However, neither the Tenth Amendment nor the Supremacy Clause nor any other provision in the Constitution decisively resolves whether there may also be regulatory spaces in which both the states and the federal government may operate. Drawing the conclusion that such overlapping regulatory space exists requires an interpretive leap, but so does the extrapolation of wholly mutually exclusive spheres of authority. Either conclusion demands application of some exogenous theory about what American federalism means, or what, in essence, federalism is for. That we have relied on one theory or another to resolve the matter (in ways that may eventually come to seem obvious if only by virtue of their repetition) does not negate the role of federalism theory in getting us to that point.

For interpreters of the American Constitution, then, the relevant choice is not one between federalism and non-federalism, but of *which* federalism - which model of federalism best promotes the kind of governance that we seek. These are, of course, the real stakes at hand. Vividly demonstrating those stakes, Hurricane Katrina called for governmental response from the most local to the most national level, requiring regulatory decisionmakers to contend with questions about how federalism principles should dictate their interaction. This chapter, drawn from Federalism and the Tug of War Within, 66 MD. L. REV. 503 (2007), explores the stakes of this central question of constitutional interpretation.

Full post as published by Legal Theory Blog on July 12, 2010 (boomark / email).