Chapter

Toward Balance in Federalism

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/9780199737987.003.0012
Toward Balance in Federalism

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Balanced Federalism encourages more thoughtful and transparent balancing between the competing values of good governance at the heart of American federalism. It more effectively leverages the distinct functional capacities of the three branches in interpreting federalism directives, in both abstract and concrete circumstances. Finally, it maximizes the input of local and national actors, not only through the conventional political safeguards of unilateral governance but through the structural federalism safeguards of bilateral intergovernmental bargaining. These initial proposals for actualizing Balanced Federalism draw on the insights of the political safeguards school by deferring to political federalism determinations that incorporate state and local perspectives. They draw on the instincts of the judicial safeguards school in preserving a limited role for judicial review to police for extreme abuses. The tailored dialectic between judicial and political safeguards would thus facilitate legislative and executive implementation of Balanced Federalism where the political branches are most able, backstopped by modest judicial review that will finally ask the right questions. However we accomplish it, moving toward a more Balanced Federalism will advance the discourse at a critical time for both federalism and regulatory law.  At stake is the ability of state and federal government to take on confounding societal problems by harnessing local innovation and interjurisdictional synergy in governance without compromising individual rights or democratic participation.  Balanced Federalism insights will help public actors maintain a healthy balance between local and national power without catapulting any one value over all competing considerations, and without foreclosing the unique interpretive capacity that any of the three branches or various levels of government offers. Whether by legislative initiative, intergovernmental bargaining, or judicial oversight, governance that safeguards rights, participation, innovation, and synergy accomplishes what it is that federalism is designed to do. In the end, the move toward a more Balanced Federalism will foster a more thoughtful and dynamic equipoise between the federalism values and institutional capacities that—by very virtue of their internal tensions—have made our system of government so effective and enduring.

Keywords: balanced Federalism; federalism values; federalism safeguards; political safeguards; structural safeguards; judicial safeguards; intergovernmental bargaining; negotiated governance; judicial review; interpretive capacity; checks and balances; governmental accountability; localism; problem-solving governance

Chapter.  2572 words. 

Subjects: Constitutional and Administrative Law

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