Friday, August 12, 2011

Collective Action Federalism and Resolution VI (with the ACA in the background)

Prof. Kurt Lash (Illinois) and Prof. Neil Siegel (Duke) debated congressional authority this week over at Volokh.  Their points are drawn from Lash's "Resolution VI": The Virginia Plan and Authority to Resolve Collective Action Problems Under Article I, Section 8, and Robert Cooter and Siegel's Collective Action Federalism: A General Theory of Article I, Section 8.

The articles turned on somewhat different ideas.  Lash's "Resolution VI," as the name suggests, focuses on and criticizes the theory, popularized by Jack Balkin in his article Commerce, among others, that Resolution VI informs (and under a strong version even is) the meaning of the Commerce Clause and other Article I, Section 8 authorities.  (Resolution VI of the Virginia Plan, amended and adopted in the Philadelphia Convention, says that Congress should have power to "legislative in all Cases for the general interests of the Union, and also in those Cases in which the States are separately incompetent, or in which the harmony of the United States may be interrupted by the Exercise of Individual Legislation."  That language obviously isn't in the Constitution; instead, the Committee of Detail recommended, and the Convention adopted, enumerated powers.) 

Cooter and Siegel's piece, in contrast, looks to Resolution VI as just one piece of evidence supporting their theory of collective action federalism.  Siegel explains (from Volokh):

Robert Cooter and I have observed that the eighteen clauses of Section 8 mostly concern collective action problems created by two kinds of spillovers: interstate externalities and national markets. . . .

The theory of collective action federalism draws from history, from this evidence in the constitutional text, and from subsequent historical understandings and mistakes, and from modern economics to provide a structural account of the American federal system established in part by Section 8.  Its various clauses form a coherent set, not a collection of unrelated powers.  Coherence comes from the connection that the specific powers have to collective action problems that the federal government can address more effectively than the states can address by acting alone.

The states often cannot achieve an end when doing so requires multiple states to cooperate.  According to collective action federalism, the clauses of Section 8 empower Congress to solve collective action problems that predictably frustrate the states.  In the language of the Commerce Clause in particular, such problems are "among the states."

The debate at Volokh was largely around Resolution VI and its effect (or not) on Article 1, Section 8 powers.  This is an important debate, to be sure, and it'll likely play some role in the challenges to the Affordable Care Act.  (The Constitutional Accountability Center makes the argument in its amicus briefs in the cases; Elizabeth Wydra, CAC's chief counsel, outlines the argument here, in the recent SCOTUSblog symposium on the ACA.)  But Cooter and Siegel's collection action federalism is much broader than just Resolution VI.

Here are links to the posts at Volokh:

SDS

http://lawprofessors.typepad.com/conlaw/2011/08/lash-and-siegel-on-congressional-authority.html

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