Balkinization: Branching Out from Legislative Resistance

Branching Out from Legislative Resistance

Guest Blogger

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).

Jessica Bulman-Pozen

Christian Fritz’s new book, Monitoring American Federalism: The History of State Legislative Resistance, offers a rich exploration of state opposition to perceived unconstitutional acts by the federal government since the Founding. Fritz recovers a tradition of state interposition distinct from the more familiar, and more abhorred, phenomenon of nullification. Interposition, he tells us, involved “formal state protest against actions of the national government designed to focus public attention and generate interstate political pressure in an effort to reverse the national government’s alleged constitutional overreach” (p. 5). Although figures including John Calhoun and James Kilpatrick appropriated and distorted this tradition of state resistance to defend nullification, interposition was dialogic, political, and collaborative—not an individual state veto. By sounding the alarm, mobilizing political opposition, and pushing the federal government to reevaluate its actions, state legislatures shaped institutional settlements outside the courts and forged our constitutional order.

Monitoring American Federalism can help us make sense of contemporary state resistance to the federal government as well as its lineage. As Fritz’s examples illustrate, partisan federalism defined the earliest episodes of interposition, from Republican state opposition to the Alien and Sedition Acts to Federalist state opposition to the Embargo Acts. Instrumental political attachments to state and federal power may appear supercharged today, but they are nothing new. The partisan nature of federal contestation also reveals why a focus on interstate—rather than single-state—activity remains appropriate. From political pressure to lawsuits, we see Democratic and Republican blocs acting in concert. And the contingent nature of arguments about federalism underscores that “states’ rights” are not necessarily reactionary or revanchist. In the past as today, some acts of state resistance to the federal government advance racial and gender authoritarianism, while others vindicate human liberty and equality; the mechanisms of state resistance don’t tell us which is which.

While these and other points track across time, one important present-day departure from Fritz’s historical narrative is the place of legislatures at both the state and federal level. Fritz’s story of American federalism is overwhelmingly a story of legislatures. But today, legislatures are generally not the best place to look either for the federal decisions that elicit state opposition or for state resistance as the voice of the sovereign people. This is, to be clear, not a criticism of Fritz’s book, which is a history of state legislative resistance, but rather an observation about how we might pursue Fritz’s closing question of “whether and to what extent the history of interposition should influence how we think about and practice federalism today” (p. 306). As we consider and evaluate twenty-first-century “formal state protest against actions of the national government designed to focus public attention and generate interstate political pressure in an effort to reverse the national government’s alleged constitutional overreach,” we need to look beyond legislatures.

Start with the federal government. Even as laws passed by Congress continue to elicit state resistance, much more opposition to the federal government is now directed toward federal executive activity, whether by the president or, in the usual case, administrative agencies. As I’ve described in a series of papers, it’s the relationship between states and the federal executive branch that defines contemporary American federalism. Sometimes these relationships are collaborative, ways of generating national policy in the face of congressional gridlock or other obstacles to federal lawmaking. But often, and usually alongside such collaboration, states oppose federal executive activity. A focus on the executive branch makes strategic sense; whatever one’s aims, it is easier in our legal culture to challenge “executive overreach” and purport to be defending congressional prerogatives.

The states’ focus on the federal executive branch also follows from the relative policymaking roles of Congress and the executive. For many decades, federal rules have dwarfed federal statutes in volume, and federal executive actors also set policy in numerous other ways, including executive orders, grants, and waivers. From climate change to COVID, immigration to internet regulation, Medicaid coverage to managing student loans, a focus on Congress would miss most of what the federal government does—and most of what state actors oppose. Critically, state actors frequently contest these federal policies on constitutional grounds. They may make arguments about the separation of powers and the limits of Article II rather than about federalism and states’ rights, but they are still protesting “alleged constitutional overreach.” When we look for contemporary interposition, then, we cannot search only for state resistance to federal laws.

Still more significant with respect to ongoing constitutional project of monitoring, and making sense of, American federalism are the limits of state legislatures. Here, the issue is less that state legislatures have been sidelined by state executives (although that has happened to some extent as well) and more that many state legislatures are wildly unrepresentative of the people. In any legitimate form, state resistance to the federal government channels popular resistance. From Madison’s arguments in The Federalist to Fritz’s arguments in his book as well as his illuminating earlier work, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War, state legislatures claim their constitutional authority as voices of the people. But legislatures are frequently the least representative, most countermajoritarian, branch of state government. As Miriam Seifter has documented, the ravages of gerrymandering on top of geographic clustering mean that many state legislatures are controlled by the state’s minority party, while most executive and judicial actors are elected by statewide majorities. When these state legislatures oppose the federal government in partisan terms, they are not channeling the people’s will but something closer to the opposite.

If we want to find popular resistance to the federal government in state channels, we will often have to look elsewhere. And there are plenty of places to look, from constitutional and statutory initiatives in direct-democracy states, to gubernatorial policymaking, to attorney general lawsuits, to state court decisions. To see where states today are sounding the alarm and generating new constitutional possibilities—to see where interposition may be a viable and legitimate strategy of political contestation—we need to branch out from legislatures.

Jessica Bulman-Pozen is the Betts Professor of Law at Columbia Law School. You can contact her at jbulma@law.columbia.edu.

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