Federalism and the Right to Decide Who Decides
Title
Federalism and the Right to Decide Who Decides
Description
Federal laws sometimes preempt all state policies except those created by legislative enactment. For example, under the Welfare Reform Act of 1996, states cannot give public benefits to undocumented immigrants unless the state legislature enacts a statute that does so. Such laws effectively compel states to delegate their sovereign decision-making power to one entity within a state’s government (like the legislature) rather than others (like the courts).
This article argues that using the preemption power to push decisions into state legislatures is unconstitutional. It is similar to the problem with Congress commandeering state officials by making them implement federal regulatory programs. Both practices involve Congress regulating states directly, as opposed to regulating individuals. The only difference is that instead of requiring specific behavior from state officials, Congress is dictating what H.L.A. Hart called “secondary rules”: meaning, here, rules about who has the power to make rules.
It’s as if a state created an official to decide which branch of state government should handle any given policy question—a Delegator General—and Congress passed a statute dictating the outcome of that official’s decisions. This article considers the arguments that might be made in defense of delegation-forcing preemption, and finds them unconvincing.
This article argues that using the preemption power to push decisions into state legislatures is unconstitutional. It is similar to the problem with Congress commandeering state officials by making them implement federal regulatory programs. Both practices involve Congress regulating states directly, as opposed to regulating individuals. The only difference is that instead of requiring specific behavior from state officials, Congress is dictating what H.L.A. Hart called “secondary rules”: meaning, here, rules about who has the power to make rules.
It’s as if a state created an official to decide which branch of state government should handle any given policy question—a Delegator General—and Congress passed a statute dictating the outcome of that official’s decisions. This article considers the arguments that might be made in defense of delegation-forcing preemption, and finds them unconvincing.
Creator
Publisher
Villanova Law Review
Albany Law School Research Paper
Date
2018
Format
PDF
Language
English
Bibliographic Citation
Ava Ayers, Federalism and the Right to Decide Who Decides, 63 VILL. L. REV. 567 (2018).
Files
Collection
Citation
Ava Ayers, “Federalism and the Right to Decide Who Decides,” Albany Law Faculty Scholarship, accessed February 17, 2025, https://albanylaw.omeka.net/items/show/66.