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The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States As Agents of the Nation

Publication Title

Washington University Law Quarterly

Abstract

This Article first develops the framers' understanding that both the nation and the states would be political communities with significant political decisionmaking powers and that the actual allocation of political authority would turn on the electorate's preference between the states and the nation. It explains how Congress' power to regulate private activity, to regulate the states, and to require the affirmative exercise of state authority over private activity diminishes the states' autonomy in making political decisions. It then analyzes the concept of state autonomy announced in National League of Cities v. Usery (NLC) and reviews lower court efforts to determine the extent to which state autonomy limits Congress' authority under the war, spending, Civil War Amendment enforcement, commerce, and tax powers to regulate both private activity and the states and to employ the states as the nation's agents in regulating private activity. With this background, the Article then advances a theory of political accountability as both a justification for and a limitation on Congress' power over the states, and it defines the scope of Congress' power to control the allocation of political authority in the federal system. The theory of political accountability advanced here is largely consistent with the existing pattern of national and state relations, although it supplies a new explanation for the results. It permits a wide range of national and state cooperation. Thus, it is consistent with a workable system of government. Moreover, it provides some protection for the states as political decisionmaking units by limiting the means that Congress can use to regulate the states and to employ the states as its agents. Most importantly, reliance on the political process to determine the allocation of political power between the states and the nation reduces the risk of substituting judicial policy for congressional policy because it provides a modest, principled basis for judicial superintendence of our federal system of government.

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