E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
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Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
How should we understand American
federalism today? Amidst dysfunction in Washington, the prompt of this Symposium—“Federalism
as the New Nationalism”—might suggest the states are now in charge not only of
their own affairs but also of the governance of our country as a whole, our
nationalism no more than what individual states make it. Or perhaps it might be
read to indicate the opposite: that a long-running process of centralization is
complete and the federal government has displaced the states, reducing our
federalism to nationalism.
In my contribution to the Symposium, From Sovereignty and
Process to Administration and Politics: The Afterlife of American Federalism, I argue that we need to complicate both the “federalism” and the
“nationalism” sides of the equation. We miss too much when we define federalism
in terms of autonomous state governance and distinctive state interests, as the
federalism literature tends to do. And we miss still more in assuming that nationalism
means a unitary federal position, as the federalism literature tends to take
for granted. In thinking about federalism and nationalism alike, we should
focus on the legally and politically generative interaction among the state and
federal governments and the American people.
The story of federalism as nationalism
is a story about two things in particular: the administrative state and
partisan politics. It’s old news that states administer many federal laws.
Increasingly, states also rewrite portions of federal laws pursuant to waivers.
In many areas, states don’t enjoy a protected realm in which to set their own
policies; instead, they set national policy together with federal politicians
and bureaucrats. What this means for our nationalism is just as important as
what it means for our federalism. There is plenty of competition between states
and the federal government when it comes to state administration of federal law
(think healthcare, emissions standards, immigration), but this competition tends
not to be about state versus federal interests as such. Instead, states ally
themselves with certain federal actors—often members of Congress—in in order to
oppose others—often executive branch agencies. We can’t understand today’s
federalism without considering the separation of powers, and we can’t
understand the separation of powers without considering federalism.
Partisan politics is also a critical
part of federalism as the new nationalism. The rise of ideologically cohesive
and polarized national political parties, coupled with the rise of overlapping
state and federal domains of governance, means that states are critical
platforms for the party out of power to fight the party in power in Washington (again,
think healthcare, emissions standards, immigration). We see political actors
using state and federal governments alike to articulate, stage, and amplify
competition between the political parties. Such partisan federalism
challenges our understandings of both federalism and nationalism: the states
further a set of national interests, not distinctive state interests, yet these
national partisan interests are themselves multiple. (State-level direct
democracy also provides a forum for Americans nationwide to participate, though
funding or other assistance, in national political debates that are neglected
at the federal level, like the legalization of marijuana.)
The vision I offer of states as
national actors may be unsettling to those who see too much discord and
contestation in today’s nationalism. And it may be particularly unsettling to
those who value states as independent, autonomous units of government and
define federalism accordingly. But attempting to wall off federalism from
nationalism to protect one or the other is a misguided quest. Attending to how
states pluralize, rather than stand apart from, national governance best
captures the contemporary vitality of our federalism and of our nationalism.
Jessica Bulman-Pozen is an associate professor at Columbia Law School. You can reach her at jbulma@law.columbia.edu.