Robert A. Schapiro (Emory University School of Law) has posted Not Old or Borrowed: The Truly New Blue Federalism (Harvard Law & Policy Review, Vol. 3, p. 33, 2009) on SSRN. Here is the abstract:
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Under the framework of “blue state federalism,” states are reemerging as leaders in progressive policymaking. This Article argues that in contrast to earlier forms of federalism, the new federalism entails a dynamic, interactive relationship between the states and the federal government. While older “dual federalism” emphasized judicially constructed barriers dividing the states from the national government, blue state federalism aligns with a “polyphonic” conception of federalism, which calls for a creative partnership between state and federal officials. The early achievements of blue state federalism in fields including environmental protection, lending regulation, gay rights, health care, and international human rights reflect the importance of the federal-state interaction. The successful initiatives of states in these areas do not depend on forging enclaves of state prerogative free from encroachment by the federal government. To the contrary, the state programs presuppose a significant federal role. Accordingly, the recent “federalism” decisions of the United States Supreme Court that enforce rigid boundaries between state and federal realms actually hinder state policies. The Article acknowledges the potential hazards of an absence of boundaries between state and federal domains, but contends that the perils are overstated in relationship to the potential benefits of dynamic interaction.