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Constitutional Resilience

Author

Shannon M. Roesler

Published

December 29, 2023

Since the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems. In doing so, it often enlisted states as regulatory partners—creating a system of shared governance that underpins major environmental statutes, such as the Clean Water Act and the Clean Air Act. These governance structures remain important today as we seek to adapt our laws and institutions to the serious disruptions of climate change. But recent Supreme Court decisions challenge this long-established vision of governance. This raises a critical question: How resilient is our current system of constitutional governance?

Originally applied to the natural sciences, resilience theory has since inspired scholars across disciplines to think about how social-ecological systems respond to disruptive change. At the heart of resilience thinking is an attempt to balance stability with change. But as legal scholars of adaptive governance have argued, if our normative goal is to promote the resilience of ecosystems and natural resources, our system of governance must also encourage an ecological resilience that supports the flexibility and adaptive capacity of our governing institutions and laws. Not surprisingly, the adaptive governance literature focuses on democratic processes and institutions at all levels of government. Constitutional design is a background condition rather than a feature of adaptive governance or decision making.

But background conditions may impede or facilitate the emergence of adaptive laws. Moreover, the judicial interpretations of these conditions are less static and therefore capable of either facilitating or hindering the adaptive capacity of institutions and laws. The premise of this Article is that constitutional governance doctrines can and should balance the stability of static rule-of-law resilience with the flexibility required for adaptive governance in a climate-disrupted world. Judicial doctrines can enhance adaptive capacity by fostering shared, overlapping governance and regulatory flexibility. Unfortunately, recent doctrinal trends threaten to hinder adaptive capacity. This Article examines some of these constraining threads, including the narrowing of Congress’s authority under the Commerce Clause, the resurgence of the nondelegation doctrine, and doctrines governing state authority under the Dormant Commerce Clause.

Citation

Shannon M. Roesler, Constitutional Resilience, 80 Wash. & Lee L. Rev. 1523 (2023).

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