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Federalism and the Tug of War Within$
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Erin Ryan

Print publication date: 2011

Print ISBN-13: 9780199737987

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199737987.001.0001

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The Rehnquist Revival of Jurisdictional Separation

The Rehnquist Revival of Jurisdictional Separation

(p.109) 4 The Rehnquist Revival of Jurisdictional Separation
Federalism and the Tug of War Within

Erin Ryan

Oxford University Press

Chapter Four outlines the Rehnquist Court’s New Federalism embrace of dual federalism idealism, focusing on its Tenth Amendment and preemption cases. Beginning with reflections on the Court’s problematic quest for jurisprudential absolutes, the chapter compares the contemporary Tenth Amendment anti-commandeering cases to their predecessors. It then reviews dualist elements in other doctrinal areas of the New Federalism, including expanded state sovereign immunity under the Eleventh Amendment and limited federal power under the Commerce Clause and Section Five of the Fourteenth Amendment. Finally, the chapter explores how the Rehnquist Court’s federalism and preemption cases join to reify greater separation between idealized spheres of state and federal prerogative. It critiques the resulting model for failure to grapple with the values tug of war in contexts of jurisdictional overlap. Through the combined force of formal federalism doctrine and functional preemption decisions, the Rehnquist Court’s approach shifted the baseline from the uncritical overlap of cooperative federalism to a model emphasizing protected zones of exclusive state and federal power. The overarching implication is that the checks and balances of jurisdictional separation warrant protection at the expense of other values. The New Federalism decisions do not reestablish nineteenth century dualism, but they create theoretical tension with the cooperative federalism model that continues to predominate in federalism practice. They idealize the Tenth Amendment as the arbiter of an idealized, bright-line boundary between proper state and national jurisdiction, even at the interjurisdictional margin that belies such clarity.

Keywords:   rehnquist Court, jurisdictional separation, new Federalism, dual federalism, tenth Amendment, preemption, commandeering, anti-commandeering, state sovereign immunity, eleventh Amendment, enumerated federal powers, commerce Clause, fourteenth Amendment Section Five, bright-line rules

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