Law, College of
Date of this Version
1998
Abstract
Numerous commentators claim that globalization is injuring U.S. federalism. However, it is the strategies that governments in the United States are pursuing in response to globalization that are diminishing the values of federalism rather than any aspect of globalization itself.
The analysis and critique of the U.S. federal and state government strategies reveal that the United States is in danger of adopting a misguided notion of "new federalism." The strategies pursued by the governments in the United States preserve and promote the autonomy of states in a manner that allows for policies creating negative externalities, beggar-thy-neighbor policies, and other sub-optimal policies arising out of prisoner's dilemma-type situations. Moreover, the strategies preserve state autonomy in a manner that does not lead to greater public participation in democracy or useful experimentation. In short, the strategies chosen by the governments in the United States do not promote the values of federalism. A brief comparative examination of strategies pursued by the Canadian governments supports this conclusion. Indeed, the comparison yields what will likely be surprising results to many observers. The U.S. federal government has arguably been less aggressive in constraining sub-federal government protectionism vis d vis Canada and U.S. states are arguably more aggressive than their provincial counterparts in establishing foreign policies. Accordingly, the governments in the United States must undertake a re-examination of their current strategies. Such a re-examination should occur in the context of implementing a model for a "new federalism" that focuses on the values a federal system of government seeks to promote rather than allowing federalism to be a mere slogan or rhetorical device. Successful implementation of such a model will require conscientious politicians that not only assess the constitutionality of their actions but, in addition, assess the impact of their actions on the values of federalism. Part II of this Article discusses the lack of serious consideration of the values of federalism in the current politics of "new federalism." It argues that conscientious politicians should weigh the values of federalism before taking action with respect to a given matter. Part III defines grey areas and yellow zones in the context of split sovereignty and explores their relationship. Part IV identifies the grey areas and yellow zones present in U.S. federalism. Part V analyzes the various strategies that can be adopted by federal and state governments in response to grey areas and yellow zones exposed by globalization. Part VI critiques the actual strategy adopted by the U.S. federal government with respect to the negotiation of international trade agreements. Part VII critiques the strategy chosen by state governments with respect to engaging in foreign affairs. Part VIII briefly compares the strategies of governments in Canada to highlight the misguided "new federalism" apparent in the strategies of U.S. governments. Part IX concludes that the U.S. federal and state governments need to modify their strategies adopted in response to globalization in the context of an overall reassessment of "new federalism."
Comments
24 CAN.-U.S. L.J. 35 (1998). Published by Case Western Reserve University School of Law.