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Federalism and SubsidiarityNOMOS LV$
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James E. Fleming and Jacob T Levy

Print publication date: 2014

Print ISBN-13: 9781479868858

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9781479868858.001.0001

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The Puzzling Persistence of Dual Federalism

The Puzzling Persistence of Dual Federalism

Chapter:
(p.34) 3 The Puzzling Persistence of Dual Federalism
Source:
Federalism and Subsidiarity
Author(s):

Ernest A. Young

Publisher:
NYU Press
DOI:10.18574/nyu/9781479868858.003.0003

This chapter examines two ways that account for the persistence of dual federalism. The first is the critics' belief that the Supreme Court is inclined to revive strict dual federalist limits on national power, even when what the Court actually says and does makes rather clear that it is not. The second has to do with the Supreme Court's rhetoric and doctrine regarding the use of dual federalist notions to limit state power, by defining distinct and exclusive spheres of national regulatory activity. While the chapter acknowledges that the Supreme Court's critics are right to condemn dual federalism, it argues that they are wrong to think that the Court has revived dual federalist limits on national power. It also compares dual federalism with dual sovereignty and considers alternatives to dual federalism, including managerial decentralization or “Marshallian federalism,” cooperative (and uncooperative) federalism, subsidiarity or collective action federalism, process federalism, and immunity federalism. It also comments on the claim that dual federalism is logically self-defeating and concludes with a discussion of the “Frankfurter Constraint”.

Keywords:   dual federalism, Supreme Court, state power, national power, dual sovereignty, Marshallian federalism, subsidiarity, process federalism, immunity federalism, Frankfurter Constraint

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