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New Frontiers of State Constitutional LawDual Enforcement of Norms$
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James A. Gardner and Jim Rossi

Print publication date: 2010

Print ISBN-13: 9780195368321

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780195368321.001.0001

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Dual Constitutions and Constitutional Duels

Dual Constitutions and Constitutional Duels

Chapter:
(p.127) 8. Dual Constitutions and Constitutional Duels
Source:
New Frontiers of State Constitutional Law
Author(s):

Jim Rossi

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195368321.003.0008

This chapter demonstrates the conceptual payoff in the context of the interplay between state and national legislative and executive power by focusing on two recurring problems of cooperative federalism: state implementation of federal programmatic directives, and state administrative borrowing of federal regulatory standards. In both of these situations, the state constitution may constrain the ability of state agencies to administer programs in the way they desire, most commonly through a strict nondelegation doctrine purportedly rooted in the state constitutional separation of powers. The chapter rejects the approaches to these problems worked out by both federal and state courts in favor of an approach based on comparative institutional analysis, informed by the dual enforcement model. On this view, state constitutions should not be construed to bar state administrative compliance with or adoption of federal legal norms because state constitutional nondelegation doctrines are better understood as responses to governance failures peculiar to state-level democracy; failures that have no relevance when a state legislature indirectly delegates power to the national government rather than to an organ of state government. This helps to shed light on the nature of executive power at the state level, particularly where national goals are at issue.

Keywords:   state constitutions, federalism, state courts, cooperative federalism, separation of powers, institutional analysis

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