FEDERALISM AND THE USES AND LIMITS OF LAW - PRINTZ AND PRINCIPLE

In Printz v. United States, a narrow, majority of the Supreme Court co ntinued the revival of constitutional federalism as a constraint on na tional power begun in New York v. United States. Professor Jackson con cludes that Printz's categorical rule prohibiting federal directives t o state employees is not well supported by historical or functional co nsiderations but argues that courts should enforce milder federalism-b ased limits on national legislation Judicial enforcement serves rule o f law purposes, insisting that Congress recognize that it is constrain ed by law, and reinforces the constitutional role of the states. Altho ugh values such as liberty, participation, competition, and choice can be promoted at different times by different levels of government, sec uring the constitutional position of states helps preserve their gover nments as alternative locations of power and politics in which members of different groups can participate, crossing over otherwise importan t cleavages. The Article argues that judicial enforcement of two kinds of requirements is appropriate:first, with respect to federal regulat ion of private activity as in Lopez v. United States, that there be a considered connection, consistent with the Necessary and Proper Clause , between the legislation and an enumerated power; second, that the fe deral government not interfere with the states' constitutionally requi red legislative, executive, and judicial functions , an understanding that supports a strong presumption against legislative conlmcommandeer ing,and calls for a move nuanced approach to executive commandeering t han in Printz. Finally, the Article argues that stability in sustainin g a sufficiently principled late, of federalism-based limits on nation al pourer can be better achieved with more flexible (rather then categ orical) standards, given the dynamic and pragmatic character of succes sful federalism.