Subsidiarity, the New Federalism, and Katrina

William & Mary law prof Erin Ryan has posted her new article, Federalism, Subsidiarity, and the Tug of War Within: How the New Federalism Failed Katrina Victims, and What We Can Learn.  From the abstract:

By failing to anticipate the "interjurisdictional gray area" of state and federal regulatory concern, New Federalism idealism dangerously subordinates the subtle problem-solving values that have historically counterbalanced the critical check-and-balance values of traditional American ("Old") federalism. Taken to its extreme, the New Federalism would obstruct interjurisdictional problem-solving by effectively assigning jurisdiction over a matter that implicates both local and national expertise to either state or federal agents, mutually exclusively, and then zealously guarding the designated boundary against defensible (even desirable) crossover by the other. While strictly segregating local from national regulatory authority would serve the critical "check-and-balance" purpose of Old Federalism, it would also undermine other underlying principles. In addition to the anti-tyranny value of checks and balances, Old Federalism operates from the premise of subsidiarity, or the principle that regulation take place at the most local level of government with actual capacity. The principle of subsidiarity partners a preference for localized decisionmaking (to promote diversity of preferences and regulatory competition) with a reasonable expectation for capacity in regulatory problem-solving.

Rob