Balkinization  

Wednesday, April 16, 2014

Federalism as Administration and Politics

Guest Blogger

Jessica Bulman-Pozen


For the Symposium on Federalism as the New Nationalism

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.



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