The Collective Action Constitution and the Conscientious Legislator

Guest Blogger

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

David A. Strauss

Neil Siegel’s Collective Action Constitution is a terrific book. Its underpinning is an idea that is as basic as it is important: government exists to deal with problems that come from people living together in less-than-perfect harmony. Professor Siegel molds that general idea into a more precise claim. The U.S. Constitution, he says, should be understood as a way of dealing with collective action problems, carefully defined. Professor Siegel shows how that approach worked its way through U.S. constitutional law, consistently if often only implicitly and in general ways, from the beginning. And he applies that idea in a way that illuminates one subject after another: the book’s coverage of U.S. constitutional law is exceptionally comprehensive. The theoretical arguments are fresh, sophisticated, and clarifying, but – importantly – they never lose touch with actual constitutional law.

The Collective Action Constitution doesn’t just shed light on, and engage in criticism of, existing constitutional law; it opens doors, giving us new ways of thinking about constitutional questions. To pick one example, among many possibilities: I am not a fan of the anti-commandeering doctrine, but I think the book gives a better defense of it than anything the Court has said. Let me focus, though, on something that more directly implicates the central claims of the book: Professor Siegel’s discussion of Heart of Atlanta Motel v. United States and Katzenbach v. McClung, the 1964 Supreme Court decisions that upheld, on the basis of the Interstate Commerce Clause, the public accommodations provisions of the Civil Rights Act of 1964.

Professor Siegel says that those decisions are correct because the public accommodations provisions solved what he calls the cost-benefit version of the collective action problem. He distinguishes the cost-benefit version from what he (appropriately) calls the “Pareto collective action” version: the Pareto problem, Professor Siegel says, is a failure to coordinate in circumstances in which coordination would leave everyone better off, or at least not worse off. (More precisely, they would leave every state at least as well off; Professor Siegel explains why his focus is on states, not individual people.) By contrast, a solution to the cost-benefit collective action problem produces a net aggregate benefit but might leave some states worse off. As Professor Siegel says, most of the collective action problems in U.S. federalism take the latter form.

Why do we need a collective action justification for decisions, like Heart of Atlanta and McClung, that seem solidly established on conventional Commerce Clause grounds? One reason is that a central question about the Commerce Clause over the last century is whether there are judicially-enforceable limits on Congress’s power. As Professor Siegel notes, from the New Deal era until the 1990s, there were, in practice, no such limits. Professor Siegel wants there to be judicially-enforceable limits, and he says insightful things about the strengths and (mostly) weaknesses of the limits that the Court has tried to impose in its more recent cases.

But does the cost-benefit collective action approach provide Commerce Clause limits that can be enforced by courts? I’m not sure it does. To borrow the theme of Justice Souter’s dissenting opinion in United States v. Lopez, the 1995 case in which the Supreme Court reasserted its role in imposing Commerce Clause limits, there is a reason that those limits dissolved in the New Deal era and afterwards; it was not a lack of judicial ingenuity.

But having said that – and for me this is another example of how The Collective Action Constitution opens up new ways of thinking – the cost-benefit collective action approach fills a critical, under-appreciated gap in the post-New Deal regime. It gives a conscientious member of Congress a way to approach legislation under the Commerce Clause, and other provisions as well. We did not have that kind of conscientious-legislator view of the Commerce Clause before; it seems to me that we do now, thanks to this book. The post-New Deal cases that endorsed deference to Congress sometimes expressed a generalized confidence that members of Congress, because of their connections to the states, would take the states’ interest into account to an appropriate degree. This was the theory of “the political safeguards of federalism.” But it was all kind of a black box. There was really no good account of what the appropriate degree of respect for federalism was, or of how a conscientious legislator would identify it. The Collective Action Constitution gives us that account.

Judicial enforcement of the Commerce Clause, though, may be another story. It is potentially complicated in ways that are illustrated by Heart of Atlanta and McClung. Professor Siegel says that the Civil Rights Act solved a cost-benefit collective action problem because most states benefitted if Black people could move freely throughout the nation, and those benefits outweighed the cost to the segregationist states. He makes the nice point that the benefits accrued not just to Black individuals but to firms that wanted employees and customers to be mobile. All of that is clearly right, and some of those benefits could be monetized, as could some of the beneficial spillovers, in a standard-form cost-benefit analysis.

One complication is that those benefits might be overstated, because Black Americans figured out ways work around segregation; the Green Book, which identified places where Black travelers could go in segregated states, is a famous example. To the extent Black people could avoid the effects of segregation, the Civil Rights Act was not needed, and its benefits are correspondingly less. Of course, the costs to Black people of working around segregation have to be included in the cost-benefit calculation. But on net the cost-benefit justification for the statute might be weaker.

If something about all this sounds odd – the resourcefulness and determination of the people subject to discrimination somehow weakens the case for laws forbidding discrimination – that may be because cost-benefit analysis is not the right way to think about this problem. As far as cost-benefit analysis is concerned, the argument that the Green Book weakens the case for the Civil Rights Act is not obviously different in principle from a plausible argument that Professor Siegel and others credit in a different context: that local criminal law enforcement, if effective, weakens the Commerce Clause justification for federal criminal laws. If the objectives of the federal statute are being accomplished by other means, the federal statute is, to that extent, not needed. The specific context is Lopez, which held that the Gun Free School Zones Act, a federal statute forbidding the possession of firearms near a school, exceeded Congress’s power under the Commerce Clause. One supporting argument is that local criminal law enforcement was sufficient.  

What is odd about that argument, when it is used in connection with the Civil Rights Act, is that cost-benefit analysis seems to leave out important aspects of the problem. The intuition is that people who are subject to discrimination should not have to use self-help. That’s related to what is probably the most significant difficulty with cost-benefit analysis of anti-discrimination laws: the benefits of getting rid of discrimination are intangible as well as tangible. That was the point of Brown v. Board of Education and the rejection of “separate but equal.” Incorporating those intangible benefits into a cost-benefit analysis is obviously going to be difficult. The problem is not confined to anti-discrimination laws. Environmental laws obviously have tangible benefits, and cost-benefit analysis of environmental laws is a mainstay of the administrative state, but there are intangible benefits as well -- the Endangered Species Act provides an especially clear example – and they are much more difficult to evaluate.

There are other issues along the same lines. The costs of the Civil Rights Act included, of course, the usual costs of enforcement. But what about the costs to the innkeepers and restauranteurs (possibly a too high-falutin term for Ollie McClung) who wanted to discriminate, but will now be forced to accommodate Black people; does their disutility count, or is that the kind of preference that should not enter into the social welfare function? And we could ask – if we’re doing cost-benefit analysis, we have to ask – how, or whether, to take into account the preferences of white customers who do not want to go to integrated public accommodations.

There is one further complication that, I think, applies more generally to using cost-benefit analysis to resolve issues about federalism. It has to do with the value we assign to local autonomy. Federal statutes take decisions out of the hands of state and local governments – that is, out of the hands of their citizens. They may do so explicitly by preemption, or by affecting the level of enforcement (in the case of overlapping federal and state or local criminal laws, for example), or by skewing state or local government decisionmaking in some other way. This is an endemic problem in a federal union, at least obliquely acknowledged in McCulloch v. Maryland and developed with characteristic subtlety and insight by Professor Siegel, who uses McCulloch as a jumping-off point in the book.

Professor Siegel, of course, understands the issues involved in satisfactorily incorporating these complexities into a cost-benefit account. If I understand him correctly, he envisions that courts will require Congress at least to explain what kind of collective action problem a statute is solving and to provide some kind of plausible factual justification for the solution. That seems reasonable, but I wonder if we will – and more important, should – end up with something close to the deferential regime of judicial review that characterized the period between the New Deal and the 1990s. The normative and empirical issues are so complicated that anything else risks importing, into judicial review of congressional action, the kinds of problems that characterize judicial review of administrative agencies’ actions, only worse. Congress, especially if it anticipates that courts will be skeptical, will have an incentive to establish more and more elaborate justifications for their actions (a kind of make-work program for congressional staffers). That will bog down the legislative process even more than it is already bogged down. Maybe more important, the factual and normative complications will give courts plenty of opportunities to conclude that the justifications are inadequate.

So I am not sure that this exceptional book makes the case for reinvigorated judicial review, at least in this area. But it fills the critical gap that the New Deal era left in our understanding of the responsibilities of members of Congress. And it gives us – among many other things – a way of thinking about the role of the Constitution and the federal government that we did not have before. That’s a pretty good set of accomplishments for one book. 

David Strauss (d-strauss@uchicago.edu) is the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago.