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The separation of powers does not necessarily protect the states from having their law displaced by the federal government. Sometimes it does the opposite – it operates to perpetuate the existence of federal laws displacing state law. In such circumstances, the separation of powers is an obstacle to the devolution of legislative authority to the states. Consider the requirements of bicameralism and presentment. Bradford Clark is correct to note that the procedural requirements specified in the Constitution for federal law-making were designed to give a large voice to the states. At the beginning of our history, when the only laws in existence were those of the states, these procedural requirements operated to protect state law from displacement. But, once state law has been displaced by federal law, the requirements of bicameralism and presentment may operate to perpetuate the federal law and thus hinder the devolution of power to the states. The requirements of bicameralism and presentment can thus be either friend or foe to state authority. The fact that the procedures for federal lawmaking are the same whether the federal law would displace state law or devolve power to the states shows that, to the extent they make federal law-making difficult, they operate not to safeguard federalism, but to safeguard the status quo – whether that status quo is pro-state or pro-federal.

But the Constitution does not just make federal law-making difficult. It also makes federal law-making easy – at least compared to the regime it replaced (and others that might have been adopted). The Founders sought a balance – a regime that made federal law-making difficult but not too difficult, easy but not too easy. Thus, it might equally be said that the separation of powers safeguards nationalism.

Clark’s principal doctrinal claim is that the Constitution’s specification of lawmaking procedures precludes the recognition of less onerous processes for making federal laws. The analysis just sketched suggests that the validity of this claim does not rest on whether these procedures were designed to safeguard federalism or the status quo. Moreover, because the procedures also function to safeguard nationalism, it is equally illegitimate to require more onerous law-making procedures than contemplated by the Constitution, or to eliminate one such procedure, such as by denying treaties the force of preemptive federal law. Finally, recognition that the constitutionally contemplated law-making procedures are exclusive leaves many of the most important questions unresolved, such as (a) whether the Constitution itself implicitly displaces state legislative authority in certain areas (such as foreign relations or interstate commerce); (b) how broad a preemptive effect to give federal statutes and treaties; (c) whether and under what circumstances statutes or treaties may authorize the Executive Branch to articulate preemptive federal rules; (d) whether judicial decisions erroneously concluding that state law has been displaced by statute, treaty, or federal common law should be overruled; or even (e) whether the Constitution contemplates categories of preemptive federal law not listed in the Supremacy Clause (such as customary international law).

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83 Notre Dame L. Rev. 1601-1637 (2008)