Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists' Gamble, 81 Fordham Law Review 1749 (2013)
How can the states retain relevance in an era of federal statutory law?
The persistence of the states and our enduring attachment to "federalism" in
an increasingly national and global regulatory environment has occupied
the minds of many scholars.' For the most part, however, the U.S. Supreme
Court, because of its role as the final expositor of constitutional meaning,
has been viewed as the primary arbiter of what federalism is and what is
required to protect it. Less often explored has been Congress's role in
giving meaning to federalism in the modem administrative state.2
Specifically, the possibility to which this Essay wishes to draw attention is
that federal statutes may now be the primary way in which state power is
created and protected. To be clear, the claim is not about federal statutes
that are modest in ambition and leave most areas exclusively to state
regulation. Rather, the claim is about major federal statutes that, even as
they extend federal power, entrust to the states much of their
implementation and elaboration.
Date of Authorship for this Version
Gluck, Abbe R., "Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists' Gamble" (2013). Faculty Scholarship Series. Paper 4699.