Abstract
This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmiresexemplified by the radioactive waste capacity problem at the heart of the New York litigation-by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress lacked the authority to bind a state's participation in a regulatory scheme even if state officials had effectively waived Tenth Amendment- based objections during consensual negotiations with the federal government. In so doing, the Court articulated a reasonable entitlement to federal noninterference protected by an unreasonable inalienability rule. It is an inalienability rule because any number of collective-action problems would prevent the negotiated transfer of the entitlement except through representation by elected officials. It is unreasonable because the intergovernmental partnerships thus thwarted would help resolve pressing interjurisdictional problems without offending the Constitution. Indeed, the underlying values of federalism that give meaning to the Tenth Amendment would be better served by allowing a state to decide for itself whether to hold or trade its entitlement
Recommended Citation
Erin Ryan,
Federalism at the Cathedral: Property Rules, Liability Rules, and Inalienability Rules in Tenth Amendment Infrastructure,
81
U. Colo. L. Rev.
1
(2010).
Available at:
https://scholar.law.colorado.edu/lawreview/vol81/iss1/2