Federalism and the Tug of War Within

Federalism and the Tug of War Within explores how constitutional interpreters reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from Hurricane Katrina, climate governance, health reform, and other problems implicating local and national authority, author Erin Ryan demonstrates how the Supreme Court's federalism jurisprudence can inhibit effective interjurisdictional governance by failing to navigate the tensions within federalism itself. The Constitution's dual sovereignty directive fosters an ideal set of good governance values-including the checks and balances between opposing centers of power that protect individuals, governmental accountability that enhances democratic participation, local autonomy that enables interjurisdictional innovation, and the synergy that federalism enables between local and national regulatory capacity for coping with problems neither level could resolve alone. In adjudicating questions of federalism, faithfulness to these values should be the touchstone. But they are suspended in a web of tension, such that privileging one may encroach upon another in different contexts. This inherent "tug of war" is responsible for the epic instability in the Court's federalism jurisprudence, but it is poorly understood. Providing new conceptual vocabulary for wrestling with old dilemmas, Ryan traces federalism's tug of war through history and into the present, proposing a series of innovations to bring judicial, legislative, and executive efforts to manage it into more fully theorized focus. The book outlines a model of Balanced Federalism that mediates federalism tensions on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of the three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. Along the way, the analysis provides clearer justification for the ways in which the tug of war is already mediated through various forms of balancing, compromise, and negotiation. The new framework better harmonizes the values that-though in tension-have made the American system of government so effective and enduring.

Introduction. Part I: Federalism and the Tug of War Within. I. Which Federalism?: The Choice and the Stakes. II. Federalism and the Tug of War Within. III. American Federalisms: From New Foundations to New Federalism. Part II: The Interjurisdictional Gray Area. IV. The Rehnquist Revival of Jurisdictional Separation. V. The Interjurisdictional Gray Area. Part III: Balanced Federalism. VI. The Role of Courts: Tenth Amendment Balancing. VII. Legislative Balancing Through Intergovernmental Bargaining. Part IV: Negotiating Federalism. VIII. The Role of the Political Branches: Negotiating Federalism. IX. The Structural Safeguards of Federalism Bargaining. X. The Procedural Tools of Interpretive Balancing. Conclusion: Toward Balance in Federalism.

Erin Ryan Professor Erin Ryan teaches and publishes about federalism, environmental and land use law, and negotiation. She has presented on federalism theory at academic and administrative venues in the United States, Europe, and Asia, including the Ninth Circuit Judicial Conference, the U.S. Department of Agriculture, and the United Nations Institute for Training and Research. She has advised National Sea Grant interjurisdictional governance projects involving the Chesapeake Bay watershed, and consulted with multiple universities and the United States Air Force on developing sustainability programs. She has appeared on National Public Radio, in the Chicago Tribune, the London Financial Times, and other U.S. news outlets, and in the PBS Newshour and Christian Science Monitor's Patchwork Nation project.