Reflections on Comity in the Law of American Federalism

ABSTRACT Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on the term to describe or explain duties that run from the states to the federal government. The goal of this Article is to document and account for this pattern in the law of federalism. I will explore a variety of explanations for the manner in which comity floats in and out of the caselaw, including the possibility that the terminological pattern tells us something fundamental about the meaning and limits of state sovereignty in the context of our federal system. INTRODUCTION Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity is a regime of intergovernmental courtesy, and it is principally motivated by a desire to preserve and promote harmony among nations. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Thus, courts routinely describe duties that run from one state to another as exercises in comity, and they do the same with respect to duties that run from the federal government to the states; but they almost never rely on the term to describe duties that run from the states to the national government. This is so despite the fact that cases fitting into this last category establish rules of behavior that bear important hallmarks of comity-oriented legal regimes. The principal goal of this Article is to document this pattern in the law of federalism and to consider what we might learn from it. The Article assesses why, in the context of our federal system, some instances of intergovernmental courtesy and deference are characterized as exercises in comity, while others are not. And it focuses, in particular, on what it is about the relationship between the states and the federal government that might make comity an unattractive framework for understanding the former's obligations to the latter. The strong temptation is to assume that the explanation lies in the fact of federal supremacy. It is to attribute the absence of comity talk from cases involving states' duties to the federal government to the fact that the federal government is a superior sovereign while the states are subordinates, and to the notion that comity is--at least in the familiar, international law paradigm--a framework for the relationships among political equals. But things are not so simple as that, for the cases make clear that political equality is in fact not a prerequisite to the establishment of comity-based norms among sovereigns. (As we'll see, hordes of cases characterize obligations that run from the federal government to the states as exercises in comity.) (1) Political equality, it would seem, is a familiar feature of comity-oriented relationships, not a necessary one. It is possible, though, that supremacy affects the availability of comity in a different way. Specifically, it may be the case that comity simply cannot "travel up"--that norms of comity can shape the relationships among political equals, and can guide the behavior of a superior sovereign in its dealings with a subordinate, but cannot set the terms of a subordinate's conduct toward a superior. …