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
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
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.
This work focuses on the ways that decentralization shapes the national
political process, and the ways that state power shapes the implementation of
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.
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.
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.”
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
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).Conversely, states have signed up to
implement these programs, because the alternative is not to have a say in
regulation at all.
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
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
3. Uncooperative federalism. Heather Gerken
and Jessica Bullman-Pozen point out that this dual loyalty may lead to the
phenomenon of “uncooperative federalism.”
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.”
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.
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.
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
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
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.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.
 See, e.g., Heather K.
Gerken, Federalism as the New Nationalism: An Overview, 123 Yale L.J. 1889
 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
 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).
 Heather K. Gerken,
Dissenting by Deciding, 57 Stan. L. Rev. 1745 (2005).
 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).
 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.
 Heather K. Gerken, Of
Sovereigns and Servants, 115 Yale L.J. 2633 (2006).
 Jessica Bulman-Pozen,
Federalism as a Safeguard of the Separation of Powers, 112 Colum. L. Rev. 459
 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).
 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
 See Cristina M.
Rodriguez, Negotiating Conflict Through Federalism: Institutional and Popular
Perspectives, 123 Yale L.J. 2094 (2014).