Bradford R. Clark

Constitutional Compromise and the Supremacy Clause

     In Separation of Powers as a Safeguard of Federalism, I argued that the Supremacy Clause safeguards federalism by incorporating the precise lawmaking procedures found elsewhere in the Constitution to govern the adoption of the “Constitution,” “Laws,” and “Treaties” of the United States.  These procedures preserve the governance prerogatives of the states in two ways.  First, by requiring the participation and assent of multiple actors, federal lawmaking procedures make “the supreme Law of the Land” more difficult to adopt.  Second, by assigning federal lawmaking to actors subject to the political safeguards of federalism (such as the Senate), federal lawmaking procedures allow the states to participate (at least indirectly) in the process.  From this perspective, the Supremacy Clause represents something of a double-edged sword.  The Clause performs the familiar function of instructing courts to disregard state law contrary to the “Constitution,” “Laws,” and “Treaties” of the United States.  At the same time, the Clause also suggests—by negative implication—that state law continues to govern in the absence of such law.

      In this essay, I examine the political dynamic of constitution making to reinforce the conclusions that the Supremacy Clause is the exclusive basis for displacing state law, and that the various lawmaking procedures prescribed by the Constitution are the exclusive means of adopting “the supreme Law of the Land.”  In particular, I suggest that the Supremacy Clause and the lawmaking procedures it incorporates reflect a crucial and explicit political compromise reached between the small and large states.  The delegates to the Constitutional Convention agreed to the supremacy of federal law over state law only on the condition that “the supreme Law of the Land” would be adopted with the participation and assent of the states themselves or their representatives in the Senate.  In other words, as adopted, the Constitution gives either the states or the Senate a veto over all forms of preemptive federal law. 

     This state-centered veto arose from the Founders’ resolution of a hotly contested issue at the Constitutional Convention: the basis for representation in the Senate.  The Convention initially agreed that state legislatures should appoint members of the Senate, but split over whether representation in the Senate should be divided equally among states or based on population.  After a long and divisive debate, the Convention acquiesced in the small states’ demand for equal suffrage, and even exempted this feature of the constitutional structure from ordinary amendment under Article V.  As Jack Rakove has noted, the resolution of “the prolonged dispute over the Senate, is usually regarded as the great turning point of the Convention.”  The effect of the Convention’s action—as implemented by the Supremacy Clause—was to give the Senate (constituted to represent the states) the power to veto any and all forms of federal law capable of overriding state law.

William Eskridge, Jr.

     This paper will focus on the relationship between deference to agencies (Skidmore and Chevron) and the substantive canons (avoidance, federalism including anti-preemption, lenity). Drawing on an empirical study Professor Eskridge has completed on the Supreme Court's deference jurisprudence, this paper shall argue that the Court's doctrine does not support any rule or presumption regarding their relationship. Professor Clark suggests a relationship from the structure of the Constitution, but as applied to the Oregon Aid-in-Dying Case one sees that the "doctrine" provides little assistance in predicting the Court's result, which turns on contested norms. A systematic analysis of the Supreme Court's cases (1984-2006) suggests that normative judgments are being made by the Court (majority) regarding the normative costs and benefits of state uniformity.

Elizabeth Garrett

Framework Legislation and Federalism

     In Separation of Powers as a Safeguard of Federalism, Brad Clark discusses the “finely wrought and exhaustively considered” constitutional procedures that govern lawmaking. In fact, the Constitution’s mandates with respect to congressional procedures are relatively sparse; most of the procedures governing lawmaking in the House and Senate are part of the internal rules of each body adopted pursuant to Article I, Section 5 of the Constitution (the “Rules of Proceeding” clause). These procedures can either impede lawmaking (e.g., the filibuster in the Senate) or facilitate it (the use of “special rules” in the House). In earlier work, I have described and begun to assess a group of procedures that I term framework legislation or “laws [that] establish internal procedures that will shape legislative deliberation and voting with respect to certain laws or decisions in the future.” In this paper, I will examine framework laws, both enacted and proposed, that implicate federalism. I will discuss why legislators might seek to structure the deliberation of laws related to federalism through frameworks, and what sorts of provisions we might expect. The design of such laws will implicate Clark’s analysis (for example, the Unfunded Mandates Reform Act may affect House deliberation more than Senate deliberation, which is the focus of much of Clark’s attention). The existence and scope of framework legislation in this arena may also be relevant to the appropriate level of judicial review and its focus.

John F. Manning

The Generality Problem with Federalism Doctrine

     This paper will examine several of the Court's modern approaches to federalism. It will consider, in particular, the clear statement rules employed in cases such as Gregory v. Ashcroft and the broad reliance on federalism in cases such as Alden v. Maine, which conferred upon states a broad extratextual sovereign immunity against suit even in state court. The analysis will suggest that the Constitution does not adopt "federalism" in the abstract, but rather adopts a number of relatively particular provisions and structural arrangements whose cumulative purpose is to enshrine something like what the Court now thinks of as federalism. Abstracting from those relatively more specific provisions and structural features to a general value such as federalism, as the Court now does, would seem to raise problems of generality that modern text-based theories of interpretation have associated with purposivism more generally. In the process, I will contrast the Court's approach with Professor Clark's reliance on the specific structural import of the Supremacy Clause and related constitutional procedures.

Peter L. Strauss

The Perils of Theory

     In Freytag v. Commissioner, 501 U.S. 868 (1991), Justice Blackmun propounded a compelling account of the theory of Article II’s provisions respecting appointments, limiting the “Heads of Department” Congress might statutorily authorize to make appointments to cabinet secretaries only. He escaped applying his conclusion to the case before him by a bit of judicial slight of hand Justice Scalia quite properly criticized in concurrence. Seriously carried forward, which has not happened, Justice Blackmun’s theory would have undermined a wide range of contemporary governmental arrangements. The closest the Justice came to dealing with this problem was a curious footnote merely asserting that he was not addressing appointments by the heads of independent regulatory commissions, the CIA or the Federal Reserve Bank of St. Louis. Id. at 887 n. 4. Professor Clark’s “Separation of Powers as a Safeguard of Federalism” puts us in a similar quandary. In compelling detail, he sets out to persuade us that the Supremacy Clause is joined at the hip with the most fundamental of founding compromises, that assured the smallest state, in perpetuity, two senators equal to every other’s as protection against majoritarian dominance. Only measures in which the Senate participates, that is – constitutional amendments, statutes, treaties – can displace state law. Insisting that the Supremacy Clause’s “Laws” thus can only mean “statutes,” it apparently considers that only the Seventeenth Amendment, and neither the Civil War Amendments nor the development of a truly national economy transforming our sense on interstate commerce, have altered “our Federalism.” It is an elegant theory, stoutly built and defended. Yet it seems to leave no room for the dormant commerce clause, that Oliver Wendell Holmes identified as the Constitution’s sine qua non respecting state authority, much less room for such contemporary constitutional precedents as Brown v. Board of Education or Reynolds v. Sims; it impugns the effect of federal judicial decisions in exercise of constitutionally conferred authority (e.g., admiralty) or in support of federal statutes; and it unmans federal rulemaking.

     Like Justice Blackmun, Professor Clark leaves the most important implications of his theory to the fringes of his discussion, and his reassurances about his argument’s limits do not respect its strength or impulse. Like Justice Scalia, I would look for other ways of addressing contemporary constitutional issues, that do not so dramatically unhinge our ongoing enterprise. As he and his conservative colleagues recognized in dealing with the spacious text of the Sherman Act this past June, certain types of text (like the civil codes of Europe) invite the disciplined exercise of analysis by courts responsive to contemporary conditions and needs, whatever their original theoretical basis – and the Supremacy Clause (like the rest of our Constitution) is just such a text.

Carlos M. Vázquez

The Separation of Powers as a Safeguard of Nationalism

     The separation of powers does not necessarily protect the states from having their law displaced by the federal government.  Sometimes it does the opposite – it operates to perpetuate the existence of federal laws displacing state law.   In such circumstances, the separation of powers is an obstacle to the devolution of legislative authority to the states. Consider the requirements of bicameralism and presentment.  Bradford Clark is correct to note that the procedural requirements specified in the Constitution for federal law-making were designed to give a large voice to the states.  At the beginning of our history, when the only laws in existence were those of the states, these procedural requirements operated to protect state law from displacement.   But, once state law has been displaced by federal law, the requirements of bicameralism and presentment may operate to perpetuate the federal law and thus hinder the devolution of power to the states.  The requirements of bicameralism and presentment can thus be either friend or foe to state authority.  The fact that the procedures for federal lawmaking are the same whether the federal law would displace state law or devolve power to the states shows that, to the extent they make federal law-making difficult, they operate not to safeguard federalism, but to safeguard the status quo – whether that status quo is pro-state or pro-federal.

     But the Constitution does not just make federal law-making difficult.  It also makes federal law-making easy – at least compared to the regime it replaced (and others that might have been adopted).  The Founders sought a balance – a regime that made federal law-making difficult but not too difficult, easy but not too easy.  Thus, it might equally be said that the separation of powers safeguards nationalism. 

     Clark’s principal doctrinal claim is that the Constitution’s specification of lawmaking procedures precludes the recognition of less onerous processes for making federal laws.  The analysis just sketched suggests that the validity of this claim does not rest on whether these procedures were designed to safeguard federalism or the status quo.  Moreover, because the procedures also function to safeguard nationalism, it is equally illegitimate to require more onerous law-making procedures than contemplated by the Constitution, or to eliminate one such procedure, such as by denying treaties the force of preemptive federal law. Finally, recognition that the constitutionally contemplated law-making procedures are exclusive leaves many of the most important questions unresolved, such as (a) whether the Constitution itself implicitly displaces state legislative authority in certain areas (such as foreign relations or interstate commerce); (b) how broad a preemptive effect to give federal statutes and treaties; (c) whether and under what circumstances statutes or treaties may authorize the Executive Branch to articulate preemptive federal rules; (d) whether judicial decisions erroneously concluding that state law has been displaced by statute, treaty, or federal common law should be overruled; or even (e) whether the Constitution contemplates categories of preemptive federal law not listed in the Supremacy Clause (such as customary international law).