Erin Ryan


This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress lacked the authority to bind a state's participation in a regulatory scheme even if state officials had effectively waived Tenth Amendment-based objections during consensual negotiations with the federal government. In so doing, the Court articulated a reasonable entitlement to federal noninterference protected by an unreasonable inalienability rule. It is an inalienability rule because any number of collective-action problems would prevent the negotiated transfer of the entitlement except through representation by elected officials. It is unreasonable because the intergovernmental partnerships thus thwarted would help resolve pressing interjurisdictional problems without offending the Constitution. Indeed, the underlying values of federalism that give meaning to the Tenth Amendment would be better served by allowing a state to decide for itself whether to hold or trade its entitlement. Focusing on the facts and legacy of the New York decision, this Article concludes that, although its inalienability rule is defensible in exclusively state or federal jurisdictional contexts, it is dubious in contexts that require regulatory attention at both the local and national level. A property rule that would enable states to bargain with their anticommandeering entitlement would not offend the touchstone of Tenth Amendment jurisprudence, which has always been the prevention of federal coercion of the states. A probargaining property rule would be more consistent with the rest of the Court's federalism jurisprudence, more faithful to the full panoply of values that undergird American federalism, and better for state and federal governance in difficult interjurisdictional contexts.

Document Type


Publication Date

Winter 2010

Publication Information

81 University of Colorado Law Review 1-95 (2010)