Federalism in a Conservative Supreme Court

After years of maintaining an even balance on questions of federalism,the Supreme Court's views on the federal-state relationshiphave undergone a dramatic transformation with the recent changein the Court's composition. The new conservative majority hasproved willing to protect the states from direct regulationby the federal government in almost all circumstances. It remainsunclear, however, whether the Court will give increased protectionto state regulatory efforts-and whether the Court's new memberswill be willing to respect the autonomy of states that are exercisingtheir authority in an activist (and traditionally liberal) manner.     

Pragmatic Federalism: Australian Federalism from Hawke to Howard

The article explores the nature of Australian federalism by examining four major themes in the period from Hawke to Howard. The investigation of these themes – Australian conceptions of federalism; the role of party in shaping federalism; the way problems and politics have influenced policy‐making and thereby federalism; and the nature of federal judicial review – suggests that Australian federalism can most accurately be characterised as pragmatic. It appears as a federalism shaped by pressing problems, specific policy agendas and the prevailing political dynamic, rather than by overarching conceptions of federalism derived from political theory or articulated in party ideology. This pragmatic federalism explains important aspects of Australian federalism, especially the trend towards centralisation of authority.     

Australian Federalism: Developments and Prospects

This article discusses the principal recent developments in,and future prospects for, constitutional change, judicial review,fiscal arrangements, local government, public policy, and intergovernmentalrelations since the 1977 Publius issue on Australian federalism,taking into account the arguments presented in the other contributionsto this volume. It highlights the continuing vertical imbalanceof Australian fiscal federalism, and the Hawke Labor government'srecent initiative for a closer working partnership with thestates for reforming intergovernmental arrangements. It arguesthat while there is scope for the latter, there is greater needfor the former. Nevertheless, the 1980s was significant as adecade of predominantly Labor governments working with the federalConstitution, while the 1990s promises to be a decade of celebratingthe centenary of the Australian Constitution and working towardimproving the functioning of its federal system.     

Australian Federalism: A Prospective Assessment

On 1 January 2001, Australia celebrated the centenary of itsfederal Constitution. Throughout its history, the Australianfederal system has proved both resilient and flexible, servingthe Commonwealth through the trials of depression, total war,imperial decline, and economic reconstruction. The constitutionalsystem has been developed through interpretation by the HighCourt and popular input via referendums, as well as by the ongoingprocess of intergovernmental relations. There has been an overallexpansion of Commonwealth powers with the politics of nation-building,but the states remain significantly powerful although financiallydependent on the Commonwealth. Given the institutional and popularsuccess of Australian federalism, the challenges facing theCommonwealth in the new century are not expected to be domesticor constitutional, but strategic and economic: principally,how a smallish middle power should meet the difficulties ofglobalization and security from a position of relative isolationadjacent to Asia in the southern Pacific.     

The Council for the Australian Federation: A New Structure of Australian Federalism

In October 2006, state premiers and territory chief ministers gathered in Melbourne for the first meeting of the Council for the Australian Federation (CAF). This little‐heralded event marked the beginning of the first formalised structure for state and territory only collaboration since Federation. This article describes the genesis and creation of this new structural response to ongoing state concerns about the trend to an increasingly centralised pattern of Commonwealth‐state relations. It identifies the intended functions of the Council, which include: acting as a mechanism for coordinating approaches to negotiations with the Commonwealth; operating as a clearing house for policy ideas in Australia and internationally; harmonising regulatory frameworks; and developing improvements to service delivery in areas of state responsibility. Informed by interviews with key players involved with its establishment and documentary sources, this article assesses CAF's performance during its first 18 months of operation. It explores the hopes and aspirations of key CAF stakeholders, and some of the issues that have confronted the fledgling organisation. Personnel changes among the cohort of state and territory leaders, and the election of a federal Labor government in November 2007 have altered the dynamics of CAF. The article argues that CAF's emergence is an attempt by sub‐national governments to develop new capacity and leverage to address the asymmetries that characterise contemporary Australian federalism. However, there are questions about CAF's future, particularly about state and territory governments' capacity to pursue collaborative agendas given the pace and scope of Kevin Rudd's ‘new federalism’ reforms and the demands it is placing on their policy and administrative systems.     

The Supreme Court and the Federal System: Federalism from Warren to Burger

The question of the relation of the states to the federal governmentis the cardinal question of our constitutional system. It cannotbe settled by the opinion of any one generation, because itis a question of growth, and each successive stage of our politicaland economic development gives it a new aspect, makes it a newquestion.¹     

The Reconstitution of American Federalism? The Rehnquist Court and Federal-State Relations, 1991-1997

This article surveys the U.S. Supreme Court justices' recentopinions on federal-state relations with a special focus theCourt's 1996 term. Contrary to some claims, the Rehnquist Courtis not reconstituting definitions of American federalism orthe function of the Court in defining federal-state relations.What has occurred is a revitalization of a long-standing interpretiveconflict about the deployment of government power within a legallyconstituted regime. Therefore, the debate in such cases as Printzv. United States, Camps New found/Owatonna v. Town of Harrison,City of Boerne v. Flores, and Idaho v. Coeur d'Alene Tribe isabout how the political principles contained in the nation'sfoundational legal and historical texts, such as The Federalistand other records of the American Founders, ought to be interpretedby the justices. However, despite the limited focus on interpretativetechnique, the justices' debate about federalism still has importantpolitical consequences that will affect future discussions aboutcongressional and state government power.     

Australian Public Policy, Federalism, and Intergovernmental Relations: The Federal Factor

Public policy is the overt activity of governing and what governmentshave as their primary purpose. This is so whether the politicalsystem is unitary or federal. There are many more elements thatcomplicate policymaking in a federal system. In particular,constitutional, financial, and political issues intrude becauseof the necessary interdependence of otherwise independent andautonomous national and subnational components. This articleaddresses this complexity of joint action through use of theideas about federalism, the structure of governing institutions,and the processes of policymaking. The extent to which an outcomedepends on the mixture of independence and interdependence isconceptualized as degrees of the federal factor. Linking thisconcept to particular policy arenas may provide a better understandingof federal systems than explanation from centralization or decentralizationor dependence or independence.     

Australian Federalism and the Debate Over a Bill of Rights

Successive Australian Labor governments have tried to nationalizestandards for the protection of rights either by means of astatutory bill binding on the states under the Commonwealth'smuch expanded external affairs power, or by further entrenchingspecific rights in the Constitution. All these attempts havefailed for a variety of political and constitutional reasonsincluding, importantly, the strength of Australia's establishedsystem of federalism and parliamentary responsible government.The article examines the constitutional issues underlying thedebate over a bill of rights for Australia, arguing that Labor'sattempts to implement a bill of rights have been inspired bya preference for more centralized government whereas the defeatof such initiatives indicates, the established strength of Australianfederalism.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

The Council of Australian Governments and Intergovernmental Relations: A Case of Cooperative Federalism

A series of Special Premiers' Conferences begun in 1990, andthe establishment of the Council of Australian Governments in1992, signaled a phase of "cooperative federalism" in Australia.Joint schemes of policy and legislation and new national intergovernmentalbodies were made by a series of formal agreements. The conditionsand circumstances are appraised in a discussion of the natureof intergovernmental coordination and cooperation, and fromthe critical perspective of a model of competitive federalism.It is concluded that the initiatives, largely, did not representa centralizing process, nor did they override strongly articulatedclaims for diversity. This is made clear following an analysisof the processes occurring in the newly established federalinstitutions and from a series of brief case studies. They expressedthe continuing interdependency and underlying autonomy of stateand Commonwealth governments through schemes that promised tobring agreed, joint benefits through federal solutions.     

The Debate on Australian Federalism: Local Government Financial Interrelationships with State and Commonwealth Governments

The nascent debate on Australian federalism has hitherto focused almost entirely on Commonwealth-state interrelationships to the virtual exclusion of local government. Since Australian local government employs around 156,000 people and spends in excess of $10 billion this neglect is unfortunate. In an effort to at least partly remedy this oversight, the present paper seeks to assess various unsettled questions in local government financial relationships with both Commonwealth and state governments, especially the issue of financial assistance grants and their efficiency consequences.     

National Competition Policy,Regulatory Reform & Australian Federalism*

Changes are afoot in Australia's federal arrangements concerning competition policy. While many of the proposals to enlarge the Commonwealth's sphere of influence are played out in the media, other shifts are more subtle. This article examines one of those areas of change. It looks at National Competition Policy and in particular, its regulatory reform components. It argues that the approach adopted in the 1995 agreement, which was characterised by broad principles, meticulous monitoring and substantial financial carrots, has provided the Commonwealth with a useful tool for effectively intervening in areas that have been until now, matters of state responsibility.     

Public Sector Reform, Intergovernmental Relations and the Future of Australian Federalism

Recent developments in the reform of intergovernmental relations have been influenced by contemporary models of public sector reform. Their systematic application to intergovernmental administration, in particular the manner in which jointly funded and managed programs are organised, may have profound and unanticipated effects on the federal system. When viewed in the context of a recent history of collaborative policymaking between political executives, the possibility that new forms of intergovernmental joint policy-making and program management might become the norm poses serious challenges to federal traditions of dual government. Arm's length and collaborative forms of joint decision making are contrasted as ideal types, and then used to analyse two case studies in collaborative intergovernmental decision-making — National Competition Policy and the National Training Agreement. It is concluded that the system-wide implications are profound if they are part of a broader trend, but caution is expressed about the powers of inertia and resistance in traditional forms of federal politics.     

The Federalism Debate

These papers examine current Australian federalism from the perspectives of an academic and a practitioner. Both acknowledge the opportunities arising from the current White Paper process, as well as challenges in the face of substantial cuts of proposed funding from the Commonwealth to the States. They insist upon the need for renewed commitment to the idea of federalism, and the importance of sustainable fiscal arrangements within the federation. Challenges in Reforming Australian federalism reminds us of the kind of federalism operative in Australia – concurrent, not coordinate – and develops reform proposals accordingly. Ten Steps to a Better Federation offers a range of ideas from a former state premier, drawing on his experience as both a participant at Council of Australian Government (COAG) and, later, Chair of the COAG Reform Council.     

State Merit Amicus Participation and Federalism Outcomes in the U.S. Supreme Court

Research suggests that merit amicus curiae participation correlateswith Supreme Court decision making and that states make frequentand effective use of this tool. To date, however, no study hasadequately examined the relationship between state amicus participationand the federalism values reflected in the Court's decisions.This article dev"Lelops and finds evidence for the assertionthat, when they cooperate in the amicus process, state participationis associated with an increase in the likelihood of rulingsfavoring state rather than national government power.     

Shaping the Constitutional Dialogue on Federalism: Canada's Supreme Court as Meta-Political Actor

This article challenges the view that the Supreme Court hasbecome the predominant authority on the constitutional distributionof rights and entitlements among governments in the Canadianfederation. By assuming this position of supremacy, criticscontinue, the Court has usurped key policy functions that belongto political actors, a move that has undermined democratic governancein Canada. Against this view, we argue that the management ofCanada's federal constitutional architecture is a responsibilitythe courts share with key political actors. We describe theCourt's role as meta-political, whereby the Court's federalismjurisprudence supplements rather than subverts the constitutionalrole of political actors. We develop our thesis in relationto two subnational constituencies with a distinctive constitutionalstatus in Canada: the province of Quebec and Aboriginal FirstNations.     

Australian Federalism Confronts Globalisation: A New Challenge at the Centenary

Globalisation poses a special challenge for federal systems of government. Despite administrative reforms, Australia has not fully confronted crucial questions regarding the role of states and territories when international issues overlap areas of subnational government authority. This challenge emerged with controversies over environmental regulations, import quarantines and Aboriginal policies. Initial reforms focused mainly on treaty approval processes, leaving broader policy questions largely unexamined. Subnational governments sometimes react protectively when facing dislocation threats from global forces; conversely, they can carry out constituency representation and education functions in ways that promote Australia's competitiveness and counter public distrust of globalisation. Federalism's new challenge is to devise political processes that foster positive state and territorial participation in Australia's response to globalisation.     

Devolutionary Federalism and Elazar's Typology: The Arkansas Response to Reagan's New Federalism

This article examines the relationship between the federal andstate governments with regard to the Reagan administration'sNew Federalism. The underlying concern centers on the financialrelationship among governments portrayed by Elazar's typologyof federal aid. The focus of this investigation is directedtoward the adjustments being made by the states to accommodatethe financial and administrative changes occurring on the nationallevel, as illustrated by the case of Arkansas. The analysiscenters on two questions: 1) Has the New Federalism initiativeachieved Reagan's goals of decentralizing governmental authorityback to the states? 2) Has a major redirection in the federalsystem been achieved by reducing the federal financial obligationin the intergovernmental system? The changes being made in thefederal system, as reflected by the adjustments occurring amongthe states, may signal an important realignment of federalism.