The Quixotic Search for a Judicially Enforceable Federalism

The great insight of federalism is that different levels of government have different competencies, and that wisely allocating responsibilities to those different levels of government can work significant benefits in terms of both citizen satisfaction and governmental efficiency. Federalism’s great question, then, is not how to protect the states but how to create the conditions necessary to promote wise allocation decisions. At bottom, federalism is about the institutional choice, about deciding what level of government gets to decide what issues. But the debate over judicial enforcement of federalism is also about institutional choice – about who gets to make federalism’s allocation decisions. This article critically examines the Supreme Court’s efforts, in cases like United States v. Lopez, New York v. United States, and Printz v. United States, to become a player in the contemporary federalism debate. The article takes the position that few if any normative disputes about the desirable allocation of governmental power ought to be resolved by the courts. Indeed, the contemporary search for a judicially enforceable federalism has been not only irrelevant but also potentially counterproductive to the important and complex task of rationally allocating authority among national, state, and local governments.