Wednesday, April 23, 2014

How Realist Should the Court be About the Other Institutions of National and State Government?

Rick Pildes

This is a somewhat modified cross-post from the Election Law blog:

I have recently come to the view that the issue of what I call “institutional formalism versus institutional realism” is one of the most profound and pervasive ones in all of constitutional and public law.  This issue is at the bottom of how the Court does or should review the actions of other institutions of national and state government.  Because the issue comes up regarding almost any public institution, it arises through much of what the Court does:  whether the Court is reviewing actions of Congress, or the President, or federal agencies, or state legislatures, or state courts.  The issue is whether the Court should take into account its own view of how other institutions “realistically” actually function or whether the Court’s decisions should rely only on the formal legal powers other institutions have, without regard to how they are likely to exercise (or fail to exercise) those powers in fact?

A perfect recent example is the McCutcheon decision.   The majority in McCutcheon invokes the fact that other institutions — namely, Congress and/or the FEC — have the power to fill any regulatory gaps that might emerge from the Court’s striking down the aggregate contribution limits. In turn, some critics of the decision excoriate the Court for invoking the power of Congress or the FEC to act, based on what I call the “institutionally realist” view that it is unlikely that either a polarized Congress or gridlocked FEC will in fact do anything; indeed, these condemnations sometimes suggest the majority is being disingenuous -- as if it is obvious the Court should take this realism into account.  But the real, underlying question is should McCutcheon – and cases like it — be decided differently based on the Court’s judgments of “political realism” about how the political branches and regulatory agencies are likely to respond?

Once we recognize how pervasive this issue is across different areas of constitutional law, the depth and complexity of this “realist/formalist” tension become more fully apparent. I have recently tried to capture this issue, at least as a first cut, in Institutional Formalism And Realism in Constitutional and Public Law, forthcoming in The Supreme Court view, here.  Here is the abstract:
Constitutional and public law often entail judicial review of the actions of public institutions. In engaging in this review, courts can adopt a stance of either “institutional formalism” or “institutional realism” regarding how the institution in question functions. After defining those terms, this article argues that the tension between institutionally formalist and realist approaches is a pervasive one, even if obscured or latent, throughout the constitutional and public law of institutions. We cannot understand these bodies of law fully without recognizing this fact. Many scholars in discrete areas of law can be understood as grappling with this tension in some form. But we have not appreciated how profound this institutional issue is, nor how it transcends specific areas of law to stand as one of public law’s general, defining problems.
This formalist/realist institutional tension structures public-law doctrine and debates regarding judicial oversight of virtually all the institutions of governance. As this article demonstrates, that is so for judicial review of the actions of Congress, the President, federal administrative agencies, state legislatures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress.
The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between formalist and realist approaches to the substantive content of legal concepts, categories, and doctrines. Now, the tension between institutional formalism and realism re-raises the question of how much pragmatism – this time, at the level of institutions and processes – is compatible with certain conceptions of the rule of law. Focusing more directly on this tension illuminates public law and its controversies but cannot suggest that any final resolution is available. Yet to understand public law fully requires appreciating the powerful role this tension quietly plays.

Tuesday, April 22, 2014

The Loyal Opposition

Heather K. Gerken

          This Balkinization symposium grows out of a Yale Law Journal Feature entitled “Federalism as the New Nationalism.”  My contribution to that symposium uses the term loyal opposition as a loose, interpretive frame for thinking about the relationship between minority rights and federalism.
The term loyal opposition is not often used in American debates because (we think) we lack an institutional structure for allowing minorities to take part in governance. On this view, we’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-based strategy, not an institutional one. Rights are the means we use to build a loyal opposition, and diversity is the measure for our success. 
          The story isn’t just wrong. It’s also not nearly as attractive a tale as we make it out to be. An unduly narrow focus on rights, combined with some genuinely ugly history, has also led us to endorse thin, even anemic visions of integration. And it’s led us to adopt a measure of democratic legitimacy that involves relatively little power for those it’s supposed to empower.   Indeed, the paper offers a deliberatively provocative take on the shortcomings of the First and Fourteenth Amendments as tools of minority empowerment.

          None of this should be news to the academics, particular those in the nationalist camp.  Nationalists know we owe our loyal opposition something more. They just can’t tell us what that “something more” is.  Worse, they denigrate the “something more” we do offer democracy’s outliers – federalism.  Federalism and rights have served as interlocking gears, moving our democracy forward.  Yet it’s been all too easy for nationalists to play the role of the critic, simultaneously complaining about national rights and national politics while trotting out outdated complaints about federalism.  Those who think that decentralization should be understood as a distinctively American vision of the loyal opposition can fairly ask the nationalists to put something better on the table.  To use the unduly blunt vernacular of the playground, the essay asks whether it’s time for the nationalists to put up or shut up.

Schuette v. Bamn

Gerard N. Magliocca

The opinions are out, and they are extremely interesting.  (One gets the impression that some of this material was drafted last year for Fischer and left on the cutting room floor.)

The most eye-catching part to me is Justice Scalia's dismissal of Footnote Four of Carolene Products.  In his concurrence, he says the following (internal citations omitted):

"The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by 'prejudice against discrete and insular minorities' merits 'more exacting judicial scrutiny.'  I say derived from that dictum (expressed by the four-member majority of a seven-Justice Court) because the dictum itself merely said "[n]or need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition."  After some additional discussion, Justice Scalia concludes this section with:  "[W]e should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion."

Take that--John Hart Ely!

Monday, April 21, 2014

Federalism by the Grace of Congress—and the Doctrines Needed to Protect the State Sovereign Acts it Generates

Abbe Gluck

My contribution to this symposium, Our [National] Federalism, is about modern federalism’s source, its domain, and its doctrines.  My main argument, which relates to the “nationalism” highlighted by the symposium, is that federalism now primarily comes from federal statutes—that Congress generates the modern era’s most significant federalism opportunities when Congress invites states to play leading roles in federal statutory schemes.  Distinct from the traditional conception, this “National Federalism” is neither a constant presence nor an entitlement. It comes and goes at Congress’s pleasure; it is a feature of federal statutory design that varies across statutes; and it simultaneously, and in tension, serves nationalist values at the same time that it does federalist ones.   Our Nationalism also looks different in this account.  It sheds its previously defining feature—uniformity—and instead embraces values like experimentation and local variation that are traditionally associated with federalism.

Recognizing federalism’s statutory domain, however, reveals a doctrinal wasteland. Modern accounts of interactive federalism have always suffered from a wishy-washiness problem when it comes to “real” law:  judges and scholars have spent years describing what federalism looks like and its benefits, but we still have no doctrines to effectuate the very real state power—indeed, the many state sovereign acts—that emerges from these national statutory schemes.  We have no consistent account, for example, of when state implementation of federal law gives rise to federal-court jurisdiction; whether federal or state standards of judicial review apply to the disputes that arise from these schemes; or how Chevron and its sister doctrines apply when state and federal implementers are in the game together.  My essay frames fifteen unresolved doctrinal questions of this nature—questions that are currently percolating and dividing the lower courts; that go to heart of state autonomy in the modern statutory era; but that cannot be resolved until we figure out what these things are and what law applies to them.  Is New York’s state implementation plan under the Clean Air Act state or federal law?  What about the Tennessee Medicaid program—labeled with the state-centered name, “TennCare,” an expressive act that tells us something about how the program is experienced on the ground.

Federalists should care about federalism’s statutory domain and the doctrinal gaps that I have revealed.   Whereas most of the other contributions to this symposium are pitched to nationalists—i.e., why nationalists should embrace federalism—my argument is directed at federalists.  My goal is to persuade federalists that there is real federalism inside federal statutes—indeed, some of the most important acts of federalism that we still have—but that the state power those statutes might generate is not being fully effectuated. On this particular point, my arguments are in dialogue with, but differ from, those of most my co-contributors in two fundamental ways. 

First,  in my view, state sovereignty and state power are the  ends, and ends worth preserving—not  the means to a nationalist end, like the development of ideal policy solutions or national consensus, even though I see federalism as generated from a national source. Second, the vision of national federalism that I offer is not a federalism shorn of sovereignty.   To the contrary, my argument is that federalism theory and doctrine have ignored the thousands of state sovereign acts—the passing of state laws by state legislatures, the creation of new state institutions, the hearing of cases exclusively in state courts, the appointment of new state cabinet members and so on—all of which result from Congress putting in motion national laws that offer states the frontline job of implementation, but that once so put in motion, incentivize state action that often looks no different from the types of sovereign actions undertaken by states acting alone.   The particularly doctrinal focus of my essay hones in on this point:  what kinds of doctrines will best effectuate this type of state power?  Such doctrines might include recognizing more aspects of state implementation (e.g., State Implementation Plans or Medicaid programs) as state, not federal, law; directing more of these cases to state courts; or applying state standards of review and administrative deference doctrines to the questions that they generate.  Federalists’ resistance to recognizing federalism’s statutory domain has prevented the development of the state-centered doctrines that statutory federalism requires.  But the alternative—insisting that states should play no role in national statutory schemes and ignoring the roles they do play—risks consigning the states to irrelevance when it comes to major questions of policy.

As my essay documents, the vast majority of recent cases in which the Supreme Court has uttered the word “federalism” have not been cases that raise questions implicating constitutional federalism doctrine.  They are cases about National Federalism—the federalism inside federal statutes—and federalists need a theory and set of doctrines to effectuate it.

Sunday, April 20, 2014

Shelby County and Hobby Lobby

Mark Tushnet

In the oral argument in Shelby County, Justice Scalia observed that the Voting Rights Act had been regularly re-enacted with a handful of negative votes -- "And this last enactment, not a single vote against it." A few moments later, he continued, "Even the name of it is wonderful: The Voting Rights Act. Who is going to vote against that in the future?"

The Religious Freedom Restoration Act was adopted by a unanimous vote in the House and with three "nays" in the Senate.

Just sayin'.

Friday, April 18, 2014

George Will's Partial Constitution

David Gans

Efforts to reduce the Constitution to one principle usually end up oversimplifying our nation’s fundamental charter, mangling it in the process.  So is the case with George Will’s recent column for the Washington Post, which argues that “progressives are wrong about the essence of the Constitution.”  Will claims that progressives go astray by reducing the Constitution to “democracy,” a word that Will emphasizes appears neither in the Constitution nor in the Declaration of Independence.  In Will’s view, the Constitution is fundamentally about the protection of “natural liberty,” and the need to place limits on the right of democratic majorities to infringe the personal liberty of all Americans.   No one doubts that this is a core aspect of the Constitution and, contrary to Will’s simplistic attack, I don’t know of a single progressive who would disagree.  But Will fails to grapple with the whole Constitution. 

There is much to like in Will’s discussion of personal liberty.   Will properly recognizes that the story begins in the Founding era, with the Declaration of the Independence and the Constitution, but does not end there.  After all, it was the Framers of the Fourteenth Amendment who made birthright citizenship a constitutional guarantee, provided constitutional protection for all the fundamental rights of Americans (called in the text “privileges and immunities”), and wrote equality into the Constitution for the first time.  It was not until ratification of the Fourteenth Amendment that the Declaration’s twin ideals – protection of inalienable rights and equality – were reflected in the Constitution’s text.  For good reason, its Framers called the Fourteenth Amendment the “gem of the Constitution” because “it is the Declaration of Independence placed immutably and forever in our Constitution.”    

No matter what Will says, the real disagreement between progressive and conservative constitutionalists isn’t over whether personal liberty is central – it is – but over the specific rights that are actually protected against the will of the majority.  Right now, for example, laws in many states discriminate against gay men and lesbians in loving relationships who seek to exercise their constitutional right to marry.  Does Will recognize that the blessings of liberty and the promise of equality secured by the Constitution apply to all persons, or would he permit state-sanctioned discrimination against some groups of persons in violation of the Fourteenth Amendment’s command of equal protection for all?  Will’s column evades specifics entirely, unfairly tarnishing progressives as enemies of liberty.  

Will rejects democracy as a basic constitutional value, viewing it simply as the right of majorities to have their way.  This is a dizzying reversal of his own prior writings, which called democracy “the point of the Constitution.”  In any event, Will is wrong.  The Framers understood – as Lincoln did – that only a democratic system of government of, by, and for the people could hope to honor the principles of the Declaration.  As the Declaration puts it, “to secure these rights, Governments are instituted . . . , deriving their just powers from the consent of the governed.” 

The Constitution, born in one of the most democratic moments in human history, put these ideals into practice.  In an exercise of democracy unparalleled elsewhere, the Framers insisted on ratification of the Constitution by “We the People.”  As James Madison explained, our Constitution’s system of representative democracy was designed to be “not [for] the rich, more than the poor.”  In the 225 years since, we have repeatedly amended the Constitution to protect the right to vote and to make our system of government more democratic.  More Amendments are devoted to protecting the right to vote than any other right.  Will’s claim that democracy is not a basic constitutional value does not survive a reading of the whole Constitution. 

Getting this right matters.  The Roberts Court has been steadily rewriting the rules of our democracy, making it easier to spend money to buy elections, but harder to vote in them.  Ten months ago, in Shelby County v. Holder, Chief Justice Roberts wrote the majority opinion striking down a critical section of the Voting Rights Act, one that had been instrumental in protecting the right to vote for countless Americans.  Ignoring that the Fifteenth Amendment explicitly gives to Congress the power to prevent racial discrimination in voting, the Court gutted the most important and successful voting rights law ever enacted in American history.  As a result, in places such as Texas and North Carolina, states are passing laws to make it more difficult for African Americans and other citizens to exercise their constitutional right to vote.  Earlier this month, in McCutcheon v. FEC, the Roberts Court dealt another blow to our campaign finance system, giving the richest Americans – the 1% of the 1% – the right to contribute unlimited sums of money to candidates, parties, and PACs.  Will’s disrespect of democracy as a core constitutional value runs through these opinions.  

George Will tries to offer a civics lesson about how progressives miss the essence of the Constitution.  But Will’s basic problem is his own partial reading of the document, cherry-picking the parts he likes and ignoring the rest.  George Will should go back and read the whole thing.  He’ll find that the Constitution does not force us to choose between liberty and democracy.  It guarantees both. 

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History.

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

Thursday, April 17, 2014

The Shadow Powers of Article I

Guest Blogger

Alison L. LaCroix

For the Symposium on Federalism as the New Nationalism

The terms of the federalism debate have recently changed, with important and potentially far-reaching consequences that have not been fully appreciated—even by the Court itself. The interpretive struggle over the meaning of American federalism has shifted from the Commerce Clause to two textually marginal but substantively important battlegrounds: the Necessary and Proper Clause and, to a lesser extent, the General Welfare Clause. To be sure, the higher-profile commerce power continues to attract an enormous amount of judicial attention and scholarly commentary. But for nearly a decade, the quieter, more structurally ambiguous federal powers listed at the head and foot of Article I have steadily increased in prominence. Today, the battles of judicial federalism are fought not across the well-trampled no-man’s-land of the commerce power or the Tenth Amendment, but in the less trafficked doctrinal redoubts of what I term the “shadow powers.” In my contribution to the Symposium, The Shadow Powers of Article I, I argue that this expansion of the battlefield carries important consequences for the meaning of modern federalism.

            Beginning with Gonzales v. Raich in 2005 and continuing through United States v. Comstock, National Federation of Independent Business v. Sebelius, and United States v. Kebodeaux, the Supreme Court’s “federalism revolution” has taken on a new form. The Court’s federalism jurisprudence has shifted from its once-typical form of inquiry into the scope of Congress’s power to regulate interstate commerce, refracted through the Tenth Amendment, to become an inquiry into the transsubstantive reasons for allowing Congress to regulate at all. This transformation has been especially significant when the Court views Congress as venturing into a domain not explicitly specified in the text of Article I.

I argue that the two clauses operate as shadow powers of Article I, and that their return to the center of debate in the Court and in the broader public sphere provides both a problem and an opportunity for the understanding how the United States’ federal structure should operate. Both powers have a potentially capacious quality, unlike the other Article I powers, which are much more bounded and subject-specific (e.g., “[t]o borrow [m]oney on the credit of the United States”; “[t]o coin [m]oney”; “[t]o constitute [t]ribunals inferior to the [S]upreme Court”). The shadow powers tend to become contested, and to become the linchpins of judicially enforced federalism, when contemporary legal and political players determine – for a variety of reasons, from overly rigid case law to political expediency – that there is no more room to move the doctrine in the domain of “real” enumerated powers, such as the commerce power.

I also offer a normative argument. A description of shadow powers analysis might initially lead one to believe that the Court is using the shadow powers to expand, quietly, Congress’s power beyond the ostensible limits set forth in other doctrinal areas. But such a conclusion reads the direction of the doctrinal change exactly backward. Paradoxically, the growth of shadow powers analysis has tended to narrow the permissible scope of congressional regulatory power. 

But my critique of shadow powers analysis as deployed by the Court is not based on its direction alone. The prominent role of the shadow powers in the Court’s recent decisions is both a doctrinally unprecedented and an unhelpful development that fails to set meaningful standards for how federalism should work in practice.  As I demonstrate, the novelty of shadow powers analysis lies in the sharp line the Court appears increasingly willing to draw between solid, if controversial, Article I powers such as the commerce power, and auxiliary Article I powers such the necessary and proper power. In recent doctrine, the invocation of the shadow powers has helped the Court find room to maneuver within its federalism analysis, while also appearing to maintain its commitment to an apparently unmoving post-Lopez baseline of a narrow commerce power.  This maneuvering might be productive if it were carried out explicitly, with some discussion by the Justices of the reasons for preferring to adjudicate federalism at its doctrinal and textual periphery rather than at its center.  But the result of the growth of shadow powers analysis has in fact been to obscure the outlines of federalism’s map – to shroud genuine (and perhaps salutary) doctrinal changes within a fog of constitutional text, under-overruled precedents, and acontextual readings of foundational cases such as McCulloch v. Maryland.

Alison L. LaCroix is Professor of Law and Ludwig and Hilde Wolf Teaching Scholar at the University of Chicago Law School.  You can reach her at