North Carolina Law Review
Philip J. Weiser, Towards a Constitutional Architecture for Cooperative Federalism, 79 N.C. L. Rev 663 (2001), available at https://scholar.law.colorado.edu/faculty-articles/589.
In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law, the essence of the anti-commandeering rule and Tenth Amendment doctrine, and separation of powers concerns with state administration of federal law without federal executive oversight. As Professor Weiser explains, courts can only make clear that cooperative federalism regulatory programs rest on a solid constitutional foundation by forthrightly resolving these questions with doctrines that embrace the existence of cooperative federalism. Professor Weiser thus recommends that the courts endorse a constitutional architecture that, following the Erie doctrine's commitment to a cooperative judicial federalism and Albert Hirschman's model of exit, voice, and loyalty, respects state autonomy, appreciates the importance of allowing states to opt of federal regulatory programs, and recognizes the value of state implementation of cooperative federalism statutes.
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