The Future of Federalism
AEI Legal Center for the Public Interest
Chapman School of Law and the Federalist Society
About This Event

The American system of federalism is at the heart of many disagreements over important constitutional and public policy issues. Changes in all three branches of government and recent Supreme Court decisions raise questions about the future scope of federal-state relationships: How should we balance state and federal rights? Should the Listen to Audio

Download Audio as MP3
courts take a more active role in limiting federal power, or should they instead leave the federal-state balance to the political process? Can we make better progress on these issues by allowing states to pursue their own policies independently? Or should the federal government take a more active role?

At this AEI event, cosponsored by the Chapman School of Law and the Federalist Society, scholars of differing points of view will address these questions and reflect on the future structure of American federalism. During the first panel, award-winning professor of courts and social policy Malcolm Feeley, AEI’s Michael S. Greve, public and constitutional law professor Roderick Hills, and George Mason Law professor and coeditor of the Supreme Court Economic Review Ilya Somin will consider whether we should strive for a system in which states compete or cooperate with each other and with the federal government. Randy Barnett, author of Restoring the Lost Constitution, and constitutional law expert Jesse Choper will discuss the appropriate level of judicial review and the role of the judicial branch in adjudicating disputes over the scope of federal and state power during the second panel. Panelists for the third discussion will examine the importance of federalism in two major public policy issues: health care and the environment. Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit will deliver a keynote address on the future of federalism.

There is no charge for the conference, but CLE credit will be available through the Federalist Society for $25.

8:45 a.m.
Registration and Breakfast
Panel I: Competitive and Cooperative Federalism
Malcolm Feeley, University of California, Berkeley, School of Law
Roderick Hills, New York University School of Law
Ilya Somin, George Mason School of Law
John Eastman, Chapman University School of Law
Panel II: Judicial Review of Federalism—A Discussion
Randy Barnett, Georgetown University Law Center
Jesse Choper, University of California, Berkeley, School of Law
Michael S. Greve, AEI
Luncheon and Keynote Address
Judge William Pryor, U.S. Court of Appeals for the Eleventh Circuit
Panel III: Health Care and the Environment
Jonathan Adler, Case Western Reserve University School of Law
James Blumstein, Vanderbilt University Law School
Ashley Parrish, Kirkland & Ellis LLP
Event Summary


The Future of Federalism



WASHINGTON, SEPTEMBER 15, 2008--It is the structure of our constitution that has made America a beacon of freedom in the world and has secured our individual liberties, federal appeals court judge William H. Pryor Jr. said at AEI on September 12. "In our post–September 11 world, where freedom is our hope, we need federalism--which secures freedom--now more than ever," he remarked during his keynote address at a conference on the future of federalism. "Both federalism and the separation of powers must endure as structural limits of government." Several law professors and constitutional scholars of widely differing perspectives joined Judge Pryor to debate the meaning of federalism and its relevance for American law and politics.

Federalism ensures that the federal government focuses on its own constitutional functions. "The Constitution created the federal government to protect national security, conduct foreign affairs, and promote economic competition because the states are not up to those tasks," Judge Pryor said. "Whenever the federal government usurps a power of the states, it necessarily diverts its attention from its national responsibilities."

During the opening panel, AEI's Michael S. Greve explicated two ways to understand "federalism": the states versus the federal government and the states cooperating with or competing against one another. Greve said that federalism serves to "reduce the costs of government and constrain government." Malcolm Feeley of Berkeley Law rejoined that federalism forces individuals to adopt dual identities--as a citizen of a state and as an American--and that this system is unstable because the United States does not function very much in this way. "Very few people, if any, are willing to kill or be killed for their local community," Feeley said.

Ilya Somin of the George Mason School of Law argued the merits of competitive federalism, saying that certain policies can drive individuals to "vote with their feet," migrating to different states based on self-interest. Roderick Hills of the New York University School of Law introduced a slightly different view of competitive federalism. His theory of "agency costs"--voters' difficulty in monitoring their elected officials--is based on competition between the states and the federal government.

The second panel focused on judicial review of federalism. Randy Barnett of the Georgetown University Law Center presented his view of the "three federalisms"--enumerated powers federalism in the founding era, fundamental rights federalism following the Civil War, and affirmative state sovereignty federalism following the New Deal. Barnett also identified a "new federalism" that started under the Rehnquist court and is grounded in the tenth and eleventh amendments. Jesse Choper of Berkeley Law argued the merits of congressional action in protecting states rights, arguing that "laws that allegedly infringe on state power need enormous broad support" to pass as legislation from Congress. "This all works to protect states' rights in the national government," he said.

The final panel focused on the importance of federalism for health care and environmental policy. Vanderbilt University Law School professor James Blumstein spoke about the State Children's Health Insurance Program in relation to federalism. AEI's Thomas P. Miller argued the merits of competitive federalism--including the need to "bring market-like forces to bear on politics"--in terms of health care regulation. Miller said that "top-down federal preemption" should be avoided in health care regulation reform, and we should instead opt for less federal legislation. Jonathan Adler of the Case Western Reserve University School of Law said that citizens should "want the federal government to care for the public good," especially in relation to the environment, but that many times the "federal government regulates in many areas where there is no clear analytical basis for federal regulation."


For video, audio, and more information about this event, visit

The AEI Legal Center for the Public Interest ( sponsors original and timely research in legal and constitutional issues, including federalism. For more, see the AEI Press volumes Real Federalism, by Michael S. Greve, and Federal Preemption, edited by Richard A. Epstein and Michael S. Greve. See also AEI's Constitutional Outlook series.

For more information about the Legal Center and its work on federalism, contact Sara Wexler at For media inquiries, contact Veronique Rodman at


View complete summary.
Chapman School of Law and the Federalist Society
Also Visit
AEIdeas Blog The American Magazine

What's new on AEI

image The money in banking: Comparing salaries of bank and bank regulatory employees
image What Obama should say about China in Japan
image A key to college success: Involved dads
image China takes the fight to space
AEI Participants


  • Ted Frank is a former resident fellow at AEI. He specialized in product liability, class actions, and civil procedure while at AEI. Before joining AEI, Mr. Frank was a litigator from 1995 to 2005 and clerked for the Honorable Frank H. Easterbrook on the Seventh Circuit Court of Appeals. Mr. Frank has written for law reviews, the Wall Street Journal, the Washington Post, and The American Spectator and has testified before Congress multiple times on legal issues. He writes for the award-winning legal blogs and Overlawyered, and the Wall Street Journal has called him a "leading tort-reform advocate."  Mr. Frank was recently elected to membership in the American Law Institute.


Michael S.


Thomas P.
  • Thomas Miller is a former senior health economist for the Joint Economic Committee (JEC). He studies health care policy and regulation. A former trial attorney, journalist, and sports broadcaster, Mr. Miller is the co-author of Why ObamaCare Is Wrong For America (HarperCollins 2011) and heads AEI's "Beyond Repeal & Replace" health reform project. He has testified before Congress on issues including the uninsured, health care costs, Medicare prescription drug benefits, health insurance tax credits, genetic information, Social Security, and federal reinsurance of catastrophic events. While at the JEC, he organized a number of hearings that focused on reforms in private health care markets, such as information transparency and consumer-driven health care.
  • Phone: 202-862-5886
  • Assistant Info

    Name: Neil McCray
    Phone: 202-862-5826
AEI on Facebook