A Response to beyond Separation: Professor Copeland’s Ambitious Proposal for “integrative” Federalism
نویسنده
چکیده
Professor Charlton Copeland offers a wide-ranging, ambitious critique of what he characterizes as federalism jurisprudence’s dominant models of “separation” and “allocation” of authority between the respective federal and state spheres. Judicial resolution of federalism questions, he suggests, turns inappropriately and incompletely on the moment of a law’s enactment. This “obsession with the legislative process as the object of federalism enforcement” ignores the more nuanced interactive processes between federal and state authorities that occur after a statute is enacted and as it is implemented through administrative channels. Particularly in the context of cooperative federal-state programs, such as Medicaid, Congress enacts the broad requirements with which states must comply in order to receive federal funding or avoid federal preemption. Congress also typically delegates rulemaking authority to an executive branch agency to flesh out the details and supervise state implementation of the program. Necessarily, then, the federal agency will engage in ongoing monitoring, negotiation, and enforcement of state authorities. It is this sub-congressional, continual interaction between federal and state authorities that Copeland finds inadequately captured in existing federalism scholarship and doctrine. The omission matters, Copeland suggests, because courts’ myopic focus on the initial exercise of congressional authority may “allow[] for continued interactions where substantive regulatory authority may
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