Jump to ContentJump to Main Navigation
New Frontiers of State Constitutional LawDual Enforcement of Norms$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see www.oxfordscholarship.com/page/privacy-policy).date: 19 July 2019

Dual Constitutions and Constitutional Duels

Dual Constitutions and Constitutional Duels

(p.127) 8. Dual Constitutions and Constitutional Duels
New Frontiers of State Constitutional Law

Jim Rossi

Oxford University Press

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

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .