an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday I wrote about one of the puzzles in the federalism literature -- the fact that the two, main opposing camps in federalism debates have a markedly similar view of state power. Most scholars imagine federalism as providing electoral minorities with an exit option, a chance to rule themselves, separate and apart from the center. As I argue in a paper I just published in the Harvard Law Review, Foreword: Federalism All the Way Down, while "exit" is an excellent way to conceptualize chunks of "Our Federalism," it doesn’t describe all of it. And because constitutional theory remains rooted all but entirely in an exit account, it is disconnected from the many parts of "Our Federalism" where an exit model doesn't capture the form of power states wield. In these areas, the states and federal government regulate together, often with states administering national policy. The power that minorities wield is that of the servant, not the sovereign. In these areas, minorities exercise a muscular form of voice, one that allows them to make federal policy and not just complain about it.
This leads me to a second puzzle about federalism. I'm not the first to argue that the conventional tools of constitutional theory are ill suited for understanding the massive portions of the federal administrative state that we term "cooperative federalism." But cooperative federalists and their intellectual heirs dwell, as the moniker suggests, on the cheerier elements of federal-state interactions -- the ways in which joint regulation promotes mutual learning, healthy competition, and useful redundancy. The work is the rough cognate to the accounts of constitutional federalism that emphasize its technocratic benefits -- those that depict states as laboratories of democracy, sources of innovation, and regulatory rivals.
The puzzle is that scholars who write about "cooperative federalism" haven't limned the theories that make up the other half of constitutional theory -- those that emphasize the role that federalism plays in shaping identity, promoting democracy, and diffusing power. We've missed how much work there is to be done on the uncooperative dimensions of cooperative federalism and the democratic elements of those bureaucratic arrangements. We've neglected the fact that Tocqueville’s democracy fails to produce Weber’s bureaucracy.
Take, for instance, the commonplace that that national power is diffused in two ways, one horizontal and one vertical. There is a curious difference between the ways we understand these institutional arrangements. At the horizontal level, we have long had two competing theories about how to check a government. The first, separation of powers, depends on autonomy and independence. Power is diffused by having institutional actors swim in their own lanes, carrying out policy in their own independent spheres. The second, checks and balances, depends on integration and interdependence. Power is diffused by creating a messy structure of overlapping institutions that depend on one another to get anything done.
Just one model dominates the debate on the vertical diffusion of power: sovereignty, which is the natural cognate to the separation of powers. Both models turn on the notion that power diffusion requires autonomy rather than integration, independence rather than interdependence. Both depend on formal accounts of separate policymaking spheres.
As I argue in The Foreword, what is missing in federalism is the cognate to the checks and balances model -- an account of the ways in which integration and interdependence can help diffuse power. We don't depict voice -- not even the muscular form of voice that allows for rebellious state policymaking -- as a strategy for checking the national government. Instead, we continue to emphasize federalism's hierarchical dimensions rather than imagining federal-state relations as we do the relations between the three branches -- as a system that mixes conflict and cooperation to produce governance.
Let me close with a concrete example of why I think it's worth filling this gap in the literature --why it's important to develop a rough cognate of the checks and balances approach when thinking about the vertical diffusion of power. Think about the efforts of the dissenters in Printz v. United States and New York v. United States to resist the majority's anticommandeering arguments. The majority was able to invoke deeply intuitive, historically rooted arguments about the value of sovereignty. While the dissenters were feeling their way around the arguments I offer in The Foreword, they had to make those arguments piecemeal. Their arguments would have been stronger had they been able to draw upon a well-established doctrinal analogue like “checks and balances” in making their case.