Balkinization: Negotiating Conflict through Federalism

Negotiating Conflict through Federalism

Guest Blogger

Cristina Rodríguez

For the symposium on Federalism as the New Nationalism

In my contribution to this symposium, Negotiating Conflict through Federalism, I begin with the question of what federalism might be good. I emphasize, however, that no single conception of its value exists. The answer to the question depends on the perspective we adopt. Of what value is it to the central government to have state and local governments to contend or work with? Of what value is it to state and local governments to be embedded in a system with a strong central government and myriad competing governments? Of what value is it to the people to have government power split and decentralized? I broach these questions by considering how some of today’s most salient public policy debates—over immigration, same-sex marriage, drug policy, education, and health care—have been unfolding through the institutions of federalism.

I argue that the value of the system common to all participants is that it creates a framework for negotiating conflict over time. In the spirit of this symposium, I emphasize that having many institutions with lawmaking power enables overlapping political communities to work toward national integration and even consensus, while preserving governing spaces for meaningful disagreement when consensus fractures or proves elusive—regular occurrences given the non-linear nature of most difficult debates. In emphasizing federalism as a new form of nationalism, then, we should not lose sight of the importance (and national value) of maintaining institutional independence at the state and local level—independence that even the federal government has reason to appreciate.

The federal government often will have an interest in using federalism’s institutions to its advantage, either to expand its capacities to regulate or to amplify the influence of national politicians or parties. But sometimes this interest evolves into a desire to assert primacy—the federal government may want its federalism both ways. Its lawsuit against Arizona’s immigration bill reflects this ambivalence. Whereas the government highlighted its desire for cooperation with state and local police in immigration enforcement throughout the litigation, the lawsuit itself also sought to reclaim control over the political conversation concerning immigration, as well as the enforcement agenda.

But this desire for control will not be totalizing, and among the chief values of the system to the federal government is its utility in de-escalating conflict. The Department of Justice’s willingness to adjust its enforcement priorities in response to the marijuana legalization referenda in Colorado and Washington and to thus essentially collaborate with those states in their experiments could well reflect an interest in seeing policy shifts develop at a lower-stakes level. Just as developments in the states with respect to same-sex marriage have opened up space for the federal government to changes its benefits policies and articulate a strong constitutional argument in favor of marriage equality, drug policy developments in the states may help enable a shift in federal position that the federal government acting on its own would not dare attempt.

For states and localities (which should not be conflated), the federal system will generate opportunity and influence, and both cooperation and confrontation with the center can be useful. Joint federal-state operations and delegation schemes can enable sub-federal governments to expand their capacities to solve local problems, which has both good-government value to bureaucrats and political value to lawmakers seeking to improve their chances for re-election or build their reputations. Such arrangements might also enhance state actors’ abilities to inform federal policy and related national debates—the potential for influence not lost states and localities that participate in immigration enforcement. But for state and local officials, there will also be a value to a system that safeguards their decisional independence. Independent lawmaking authority creates an institutional framework to address local problems that might not register with a centralized bureaucracy. It also enables state and local officials to act as antagonists of the federal government (or the party in control of it). This dynamic in turn can advance their own profiles as well as the values and preferences of voters not well represented in Washington.

The question then becomes whether federalism has value for the people—perhaps the only question scholars really should be concerned with. It can be hard to escape the banal observation that popular interests are best served by national regulation some of the time and state and local regulation at other times. Federalism easily reduces to a procedural framework for opportunistic ideological struggle—a problem that besets the political parties’ approach to it, too. When Arizona regulates immigration with a strategy of attrition through enforcement, progressive activists eschew federalism. But when state and local police resist cooperation with federal enforcement, the Tenth Amendment suddenly has appeal.

In this last part of the essay, I attempt to judge whether federalism is useful from the popular point of view by whether it serves the ends of government, which in my view include solving social problems and enabling the realization of popular values and preferences. While the former will largely depend on the sort of problem at issue, on the latter front I argue that the creation of multiple electorates helps channel the complexity of public opinion through institutions. It is the institutionalization of multiple and contradictory preferences that over time serves popular interests. This process is aided by the way the federal system generates different forms of governance, such as the ballot initiative, and creates opportunities for people to organize trans-locally and work through horizontal dynamics.

This variety of perspectives makes it difficult to devise a unified normative theory of federalism. Nonetheless, from each relevant perspective, I believe it is possible to express proceduralist preferences for decentralized decision-making, based on observations about the value of decentralization over time to working through hard questions of politics and policy. This conclusion does not preclude acknowledging that national institutions should be strong and sometimes cut off decentralized debate in the interest of the public good, or to overcome regulatory dysfunctions. But it does point in the direction of developing rules of engagement, especially for the federal government, that keep federalism’s institutions robust.

Cristina Rodríguez is Professor of Law at Yale Law School. You can reach her at cristina.rodriguez@yale.edu.

Posted 9:58 AM by Guest Blogger [link]