This commentary considers what federalism all the way up means for Gerken’s proposed new process federalism. The state-federal integration she documents underscores why judicial policing of “conditions for federal-state bargaining” cannot be limited to state-federal relations in the traditional sense. It must extend to state challenges to the allocation and exercise of authority within the federal government. The new process federalism would therefore do well to address when states will have standing to bring such cases in federal court. After Part I describes contemporary federalism-all-the-way-up litigation, Part II suggests that Gerken’s “Federalism 3.0” complicates both traditional parens patriae and sovereignty arguments for state standing but lends force to the recognition of states’ representative role within federal schemes.
Constitutional Law | Jurisdiction | Jurisprudence | Law | Political Theory
Federalism All the Way Up: State Standing and "The New Process Federalism",
Calif. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2080