Monday, August 1, 2011

Federalism Under Obama

Prof. Gillian Metzger (Columbia) recently posted Federalism Under Obama on SSRN.  Metzger's article is part of the William and Mary Law Review symposium on Constitutional Transformations: The State, the Citizen, and the Changing Role of Government, held last February.  (Other papers from the symposium will appear in Volume 53, Issue 2, November 2011.)  (We previously posted on Metzger's Internal and External Separation of Powers and talked with her about her amicus brief in American Free Enterprise Fund, the OT09 case involving (and overturning) the PCAOB, an independent body created by Sarbanes-Oxley within the SEC.)

Metzger argues that federalism under President Obama is more complicated than it may appear.  Analyzing the federalism features several programs in detail--including federal health care reform, the Dodd-Frank financial reform act, the Recovery Act, and Race to the Top--and the administration's preemption guidelines and practices, Metzger argues that President Obama's federalism has these characteristics:

  • A more active government, at both federal and state levels.  President Obama's federalism does not mean a more robust federal government at the expense of the states; instead, it means enhanced roles for both federal and state governments.  Metzger argues that "[s]tates are given significant room to shape their participation in the new federal initiatives, as well as enhanced regulatory authority and expanded resources to do so."  But state participation is "in service of progressive policy, not a general devolution of power," and states that elect not to participate face the prospect of a federal government regulating directly (and thus losing their ability to pursue their preferred policies).
  • The Administrative Sphere is Central to Modern Day Federalism.  Metzger argues that administrative agencies, not Congress and the courts, are playing an increasingly important role--indeed, a central role--in shaping federalism.  This is a theme that Metzger also explores in her earlier piece, Administrative Law as the New Federalism.
  • States as Players.  Metzger argues that states and state officials have a broad ability to effect policies under the Obama Administration's signature programs--that "structural mechanisms . . . give state officials a direct role in federal administrative decisionmaking and potentially limit agencies' abilities to prevent state involvement." 
  • Subdivided Federalism.  Metzger argues that two programs, Race to the Top and the Recovery Act, allow localities to bypass state governments, thus allowing the federal government to effect policies through (more favorably inclined) local governments and dodge (hostile) states.

This is a valuable addition to Metzger's already significant scholarly contributions on federalism.  Check it out.


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