Chapter

The Role of the Courts: Tenth Amendment Balancing

Erin Ryan

in Federalism and the Tug of War Within

Published in print December 2011 | ISBN: 9780199737987
Published online January 2012 | e-ISBN: 9780199918652 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199737987.003.0006
The Role of the Courts: Tenth Amendment Balancing

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Chapter Six offers a preliminary exploration of how Balanced Federalism theory would depart from the status quo, imagining the strongest judicial role within such a model. It sets forth the theoretical ideals, factors for consideration, and mechanics of how judicially-enforceable Balanced Federalism constraints could work in lieu of existing doctrine, focusing on the Tenth Amendment. It proposes replacing the bright-line anti-commandeering rule with a judicial standard for evaluating commandeering and even preemption claims. Where dual federalism asks the Tenth Amendment to police a boundary between mutually exclusive spheres of state and federal authority, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity in the gray area between for impermissible compromises to federalism’s underlying values—checks, accountability, localism, and problem-solving. The chapter illustrates the balancing test through application to four concrete controversies: the regulation of stormwater pollution, climate governance, the Katrina response, and national health insurance reform. The chapter concludes with a defense of judicial balancing as a tool of constitutional interpretation in the federalism context. It rebuts the most powerful critiques of judicial balancing, including indeterminacy, judicial bias, and separation of powers. In a world with any judicial federalism constraints, explicit judicial balancing is preferable because values-balancing is inevitable—either covertly in application of a set doctrinal rule or through the initial act of balancing that produced the doctrinal rule. Nevertheless, legitimate concerns about expansive judicial discretion lay the foundation for later discussion of when the judiciary should defer to the federalism determinations of political actors.

Keywords: balanced Federalism; judicial federalism constraints; judicial review; tenth Amendment; anti-commandeering rule; rules and standards; balancing test; judicial standard; commandeering; preemption; checks and balances; accountability; localism; problem-solving capacity; stormwater pollution; climate governance; hurricane Katrina; health reform; judicial balancing; indeterminacy; judicial bias; separation of powers; values-balancing; judicial discretion

Chapter.  15471 words. 

Subjects: Constitutional and Administrative Law

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