Balkinization: The New Nationalism, Part One

The New Nationalism, Part One

For the past several years, I've been posting discussion questions from the forthcoming supplement to the Brest Levinson casebook for selected decisions from the past Supreme Court Term.

This year, at the request of my colleague Heather Gerken, I wrote an note-- actually more of a short essay-- on the "New Nationalism," an academic movement championed by Heather and her scholarly allies/interlocutors. It's an interesting and important take on federalism, and one that students should know about as they work through the (sometimes dreary) debates over federalism in the first year constitutional law course.

What is interesting about the New Nationalism in my view is that it shifts the focus from thinking about states as sovereigns to thinking about states and cities as stakeholders in the direction and implementation of federal policy. This model is largely consistent with the post-New Deal approach to federalism, and indeed, it mostly takes that approach as a starting point and asks what federalism means in our current legal world.

The New Nationalism is not, in other words, an attempt to turn back the clock to an older vision of dual federalism along the lines of classical liberals like Richard Epstein or Randy Barnett. Nor is it an attempt to (re)create a model of competitive federalism along the lines of Michael Greve's book, The Upside Down Constitution.

The essay that follows is mostly descriptive, with a few questions thrown in at the end for the students to think about. Because the essay is fairly long, I'm breaking it into two parts. Part One appears below. Part Two will follow tomorrow.

Note: The New Nationalism

Standard debates about federalism, as exemplified by cases like Garcia, Printz, and Lopez, revolve around the scope of state regulatory immunity and the limits of federal regulatory power. But the actual development of governance since the New Deal has changed federal-state relations in ways that do not map onto these debates particularly well.

The standard model assumes that centralization of power best serves national interests, while decentralization and devolution benefit the states and local interests. As national governance has become more complicated, however, it has also become clear that decentralization and devolution of power may also serve national interests. Conversely, states and local governments may actually increase their influence and power by structuring national policy debates and participating in national regulatory programs.

The "New Nationalism" refers to the body of scholarship that describes these phenomena.[1] This work focuses on the ways that decentralization shapes the national political process, and the ways that state power shapes the implementation of federal programs.

1. How decentralization drives the national political process. Many if not most policy and constitutional questions—including health care, immigration, voting rights, same-sex marriage, drug policy, education, and privacy—start in debates in state and local governments.[2] Different decisionmakers will reach different answers and compromises. Multiple jurisdictions for politics allow more sites in which politics can occur, which, in turn, shapes national debates. In this way, the development of rights depends on federal structure; federal structure, in turn, generates friction and controversy that engenders the political development of rights.[3]

Moreover, federalism continually produces oppositional politics that counteracts federal initiatives. American party politics operates counter-cyclically: when one party dominates national politics, the other party often gains in state and local governments who want to serve as a counter-weight to Washington, D.C. Finally, Heather Gerken argues that multiple jurisdictions allow groups to “dissent by deciding.”[4] Political minorities at the national level are never shut out of politics as long as they can exert influence or possess majority control in state or local governments.

2. The role of state power in the implementation of national programs. As the federal government has grown, it has relied increasingly on state and local governments to implement its programs, ranging from social insurance programs (Medicaid, Obamacare) to educational policy (No Child Left Behind, Common Core) to criminal law enforcement (enforcement of marijuana and other drug laws).[5] Conversely, states have signed up to implement these programs, because the alternative is not to have a say in regulation at all.[6]

One irony of modern constitutional law is that as the formal power of the federal government increased following the New Deal and the Civil Rights Revolution, the practical power of the states in enforcing federal programs also increased in tandem. After setting up new programs, the federal government often relies on state and local governments to implement them, or it engages in continuous interaction with analogous state programs in order to coordinate efforts. Taken together, these practices create what is sometimes called “cooperative federalism.”

In cooperative federalism, states and local governments willingly participate in federal initiatives. Yet because of the federal structure of politics, state and local governments are not simply loyal operatives of the federal government. Quite the contrary: they have independent bases of political power, and their own set of constituents to which they must answer. Their constituencies may differ in important ways from national constituencies. Hence when they work with the federal government, they always serve two masters, not one.

3. Uncooperative federalism. Heather Gerken and Jessica Bullman-Pozen point out that this dual loyalty may lead to the phenomenon of “uncooperative federalism.”[7] States and local governments can resist, modify, or even partially nullify federal programs they do not like, because these federal programs cannot function without state and local implementation and cooperation. In this way, states and local governments can defend the values of local majorities in the construction and implementation of federal policies.

Even when state and local officials cooperate rather than obstruct federal programs, they exercise what Gerken calls “the power of the servant.”[8] The federal government needs states and local governments as agents to implement its programs, but it cannot completely monitor or control what these agents do. Moreover, because these agents enjoy independent sources of political power, the federal government often negotiates and compromises with state and local officials as much as it gives orders to them.

4. How state power affects the separation of powers. Depending on the nature of the program, both Congress and the Executive may benefit from state and local governments’ ability to shape implementation. For example, members of Congress may object to the way that the Executive is implementing Congressional statutes through administrative regulation. State and local actors can check executive aggrandizement and support Congress by pushing back at regulations, shaping how programs are implemented, and promoting compromises with federal officials.[9]

Conversely, states and local governments can empower the President. Congressional statutes often give the President the power to waive or modify certain features of programs—such as federal welfare laws, the Affordable Care Act, Medicaid, or No Child Left Behind—by making deals with the states about how they will implement them.[10] The result is that the President can reform or modify programs by striking deals with state and local regulators in ways he or she could never have achieved if he attempted to pass the reforms through a polarized and dysfunctional Congress. In fact, the use of waivers in federal programs is one of the most important methods of presidential lawmaking in a politically polarized system. At the same time, the President can justify the waivers on the grounds that he is respecting federalism and the value of using the states as laboratories for policy experimentation.

As a result, state and local officials are players in the national separation of powers. They can tilt toward one branch or the other depending on their constituents’ needs, and they can shift their alliances as new issues arise.

5. Criminal law enforcement. The federal government can work with states in other ways. For example, although the federal government has extensive criminal laws on the books, it simply lacks the resources to enforce all of them. Therefore it has developed policies of cooperation with state law enforcement agencies. This approach has facilitated the decriminalization of marijuana use in some states.

The federal government has stated that its interest in prosecution is limited to what it regards as serious matters—like preventing the distribution of marijuana to minors; the diversion of revenues to cartels or criminal enterprises; and the use of violence in the cultivation and distribution of marijuana.[11] Conversely, it has stated that it is not interested in prosecuting minor possession offenses, leaving them to state and local officials under state law. It has also declined to assert that state laws are preempted by federal law. This relationship between state and federal law enforcement, in turn, has allowed states to effectively decriminalize marijuana possession and use within their borders. And the federal government gets something out of the deal. It allows federal officials to experiment with different policies of decriminalization in different jurisdictions, which, given the likely political and legal response, it could never have been able to implement on its own.[12]

[1] See, e.g., Heather K. Gerken, Federalism as the New Nationalism: An Overview, 123 Yale L.J. 1889 (2013).

[2] Heather K. Gerken, Windsor's Mad Genius: The Interlocking Gears of Rights and Structure, 95 B.U. L. Rev. 587 (2015); Heather K. Gerken, The Loyal Opposition, 123 Yale L.J. 1958 (2014).

[3] See, e.g., Cristina M. Rodriguez, Federalism and National Consensus 4 (Oct. 2014) (unpublished manuscript); Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077 (2014); Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123 Yale L.J. 1920 (2014).

[4] Heather K. Gerken, Dissenting by Deciding, 57 Stan. L. Rev. 1745 (2005).

[5] See, e.g., Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534 (2011).

[6] Abbe R. Gluck, Nationalism as the New Federalism (and Federalism as the New Nationalism): A Complementary Account (and Some Challenges) to the Nationalist School, 59 St. Louis U. L.J. 1045 (2015).

[7] Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256 (2009).

[8] Heather K. Gerken, Of Sovereigns and Servants, 115 Yale L.J. 2633 (2006).

[9] Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459 (2012).

[10] See generally David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 Colum. L. Rev. 265 (2013); Sam Bagenstos, Federalism by Waiver After the Health Care Case, in The Health Care Case: The Supreme Court's Decision and its Implications 227 (Nathan Persily et al. eds., 2013).

[11] See, e.g., Memorandum from James M. Cole, Deputy Att'y Gen., to U.S. Attorneys, Guidance Regarding Marijuana Enforcement 2 (Aug. 29, 2013), http://www.justice.gov /iso/opa/resources/3052013829132756857467.pdf.

[12] See Cristina M. Rodriguez, Negotiating Conflict Through Federalism: Institutional and Popular Perspectives, 123 Yale L.J. 2094 (2014).

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