William & Mary Bill of Rights Journal
Abstract
Many commentators have criticized the Supreme Court's New Federalism decisions as "excessively formalistic. " In this Article, Professor Eid argues that this "standard critique" is wrong on both a descriptive and normative level. Descriptively, she argues that the standard critique mistakenly downplays the extent to which the New Federalism decisions consider the values that federalism serves, and contends that they employ the same sort of formalism/functionalism blend that is found in the Court's separation of powers jurisprudence. Professor Eid then contends that the standard critique's normative prescription - a case-by-case balancing test that would weigh the federal interest against the burden on state sovereignty - will fail to protect the very federalism values the standard critique seeks to promote. According to Professor Eid, the Supreme Court, as a national institution, will have a tendency to overvalue the federal interest and undervalue the burden on state sovereignty, leading to an underenforcement of federalism norms.