Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists' Gamble

Abstract

How can the states retain relevance in an era of federal statutory law? The persistence of the states and our enduring attachment to "federalism" in an increasingly national and global regulatory environment has occupied the minds of many scholars.' For the most part, however, the U.S. Supreme Court, because of its role as the final expositor of constitutional meaning, has been viewed as the primary arbiter of what federalism is and what is required to protect it. Less often explored has been Congress's role in giving meaning to federalism in the modem administrative state. Specifically, the possibility to which this Essay wishes to draw attention is that federal statutes may now be the primary way in which state power is created and protected. To be clear, the claim is not about federal statutes that are modest in ambition and leave most areas exclusively to state regulation. Rather, the claim is about major federal statutes that, even as they extend federal power, entrust to the states much of their implementation and elaboration.