This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point in space and in time between uncooperative and cooperative federalism. There is no better example of Frenemy Federalism than the federal-state relationship regarding marijuana. Despite being illegal federally and legal in many states, the governments have cooperated to establish a stable, functional relationship that has allowed the U.S. marijuana industry to flourish. I use this relationship as a vehicle for introducing and exploring the concept of Frenemy Federalism, unpacking how the dormant commerce clause should apply to protectionist state marijuana laws in light of that relationship. This analysis reveals that Frenemy Federalism serves as a valuable marker of progress in uncooperative federalism relationships and as a caution against judicial interference with the delicate frenemy relationship.
University of Richmond Law Review
Suggested Bluebook Citation
Scott Bloomberg, Frenemy Federalism, 56 U. RICH. L. REV. 367 (2022).