The Procedural Tools of Interpretive 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:
The Procedural Tools of Interpretive Balancing

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The preceding positive account provides foundation for Chapter Ten’s critical normative claim: that federalism bargaining is not only a pragmatic solution to a problem of doctrinal uncertainty, but can itself be a legitimate way of interpreting federalism, when federalism interpretation is understood as a way of constraining public agencies to act consistently with constitutional directives. Federalism bargaining achieves interpretive status when it procedurally incorporates not only the mutual consent principles that legitimize bargaining in general, but also the fundamental federalism values that should guide federalism interpretation in any forum. After all, the core federalism values are essentially realized through good governance procedure: (1) the maintenance of checks and balances to protect individuals against sovereign excess or abdication; (2) the protection of accountability and transparency to ensure meaningful democratic participation; (3) the preference for process that fosters local innovation, variation, and competition; and (4) the cultivation of regulatory space for harnessing synergy between local and national capacity when needed to cope with interjurisdictional problems. Incorporating these values into the bargaining process allows negotiators to interpret federalism directives procedurally when consensus on the substance is unavailable. The more bargaining process incorporates mutual consent and federalism values, the more it warrants judicial deference as a means of federalism interpretation. Interpretive bargaining becomes less legitimate as factual circumstances depart from the assumptions of mutual consent—when bargainers cannot freely opt out, understand their own interests, or be trusted to faithfully represent their principals—and when procedures contravene core federalism values. When reviewing federalism challenges to such bargaining, the judicial role shifts to deferential oversight for these criteria. Drawing on the procedural application of fair bargaining and federalism values, negotiated governance opens possibilities for filling the inevitable interpretive gaps left by unilateral mandates. Indeed, it has been doing so all along. Chapter Ten’s analysis provides the missing theoretical justification for operative political safeguards while preserving a role for limited judicial review. It concludes by evaluating examples against these interpretive criteria and offering recommendations for engineering greater structural support for federalism values in bilateral governance.

Keywords: federalism interpretation; process-based interpretation; process federalism; bargaining process; bargaining legitimacy; bargaining abuse; mutual consent; faithful representation; principal-agent tension; federalism values; checks and balances; accountable governance; governmental transparency; democratic participation; local innovation; interjurisdictional competition; interjurisdictional synergy; legitimizing procedures; negotiated governance; political safeguards; judicial review; judicial deference; federalism engineering; interjurisdictional governance

Chapter.  15064 words. 

Subjects: Constitutional and Administrative Law

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