Tuesday, July 12, 2016

The New Nationalism, Part Two


This is the second installment of a short essay on the New Nationalism that I wrote for the forthcoming supplement to the Brest Levinson casebook.  Part One appears here.

6. The political safeguards of federalism, revisited. Stepping back and looking at our current system of governance, we get the following picture:  The federal government, through its New Deal powers of taxing, spending, and commerce, can regulate virtually any area of social life. Yet states, far from being crowded out by the expansion of federal power, have been ushered in as essential participants. Even so, the role of the states has changed considerably from the assumptions of the founding. States no longer have clear spaces of unencumbered regulatory power. Instead, their power comes from the fact that the federal government, no matter how great its powers may be in theory, cannot actually enforce its power everywhere. As a result, the federal government leaves a great deal of regulation to the states. And even where the federal government does regulate, states exercise considerable influence over how federal law actually operates (or does not operate) through implementation, negotiation, and resistance.

This picture requires us to rethink the debate over the political safeguards of federalism discussed in cases like Garcia. The debate has usually been organized around whether states are adequately protected because they are represented in the political process, for example, in the Senate. If states are adequately protected, judicial enforcement of federalism guarantees is unnecessary, but if states are not adequately protected, courts should step in. Defenders of national power have contended that states are generally adequately protected by the national political process; while defenders of state power have usually objected that these protections are illusory because of the way that national politics and national political parties have developed.

Cooperative federalism and related phenomena suggest a different account of how the national political process protects the interests of states, and, indirectly, the particular constituencies that states represent. States are protected politically because federal officials need to work with them and negotiate with them. As a result, states can strike deals that secure their constituents different implementations of federal policies. Through their bargaining power and influence, different states can achieve a diversity of policy outcomes. This, in turn, serves many of the traditional goals of federalism, including experimentation, mutual learning, competition, and choice. Indeed, not only are states protected in this way, but so too are sub-state units like cities and counties, who are crucial partners in many different kinds of federal programs in areas ranging from health and educational policy to criminal enforcement, social services and immigration.

7. Sovereigns and stakeholders. This revised account of the political safeguards of federalism asserts that states and local governments are protected not as sovereigns (for after all, cities and counties are not sovereigns) but as stakeholders whose participation is crucial for the practical success of federal programs. We might even call this the stakeholder model of federalism.  Instead of viewing the states as independent sovereigns in a federal system, we should think of states as indispensable stakeholders in the direction and implementation of federal policy.

8. Institutional realism.  The new nationalist model argues that federalism debates should focus on the political world we are actually living in, rather than on an idealized world of federal-state relations that no longer exists. As the cases in this casebook suggest, throughout most of the nation's history, the historical debate over federalism has been waged in terms of whether it is a good idea for courts to guarantee states distinct spheres of regulatory control or enforce limitations on federal power to protect state autonomy. The goal of protecting state power, in turn, is to support individual liberty and act as a check on federal encroachment. (See the discussion in Gregory v. Ashcroft in the casebook at pp. 841-843, and note 6, at p. 850.).

The basic terms of dispute have become increasingly irrelevant following the New Deal. Even the Rehnquist and Roberts Court's federalism doctrines have altered the New Deal settlement only at the margins. There is very little that the federal government cannot do through its combination of powers if it possesses the political will to act. For example, in Sebelius, the federal government was able to pass the individual mandate through the taxing power; and Chief Justice Roberts acknowledges that by structuring the Affordable Care Act differently, the Government could also have required the states to adopt the Medicaid extension.

9. Protecting states as stakeholders.  What are the doctrinal consequences of the new nationalism?  Does it change how courts should decide federalism cases?

The model of cooperative federalism suggests that the best way to protect states may not be to carve out spheres of regulatory immunity or limited federal power. Rather, it is to accept the broad scope of federal power but give states bargaining leverage. States protect the interests of their citizens—their political base—through their influence and participation in federal governance. They exercise political power through their ability to implement (or not implement) federal programs and to structure the terms in which federal power will be exercised.

If, for example, you regard marijuana legalization as a victory for individual liberty, the victory has not come from judicial limits on the federal commerce power. (The Supreme Court upheld federal power to regulate marijuana in Raich and again this Term in Taylor.) Rather, the achievement is due to the fact that the federal government relies on the states for the enforcement of drug laws. This gives states bargaining leverage to push the federal government to experiment with different ways of organizing drug enforcement.

However, states can only exercise this role of protecting their citizens if they have (1) "skin in the game"—that is, a stake in federal governance—and (2) some form of bargaining leverage.  It follows that the most important federalism doctrines might be those that give states both a stake and leverage in federal governance. If states increasingly protect their citizens and exercise their power as stakeholders, the courts assist them best when they protect their role as stakeholders.

How might this be accomplished? First, courts can adopt rules that require—or at least give incentives—for the federal government to bargain with states in regulatory initiatives rather than simply commanding states’ obedience. Doing so puts friction into the system of federal power in order to encourage the federal government to negotiate and work with states. This might provide an additional justification for the anti-commandeering principle recognized in Printz or the Court’s construction of the spending power in NFIB v. Sebelius.   How would one write the majority opinions in these cases from a new nationalist perspective?

Note, however, that the consequence of this approach in Sebelius is that the federal government has to get the states to agree to expand Medicaid.  It may not succeed. Some states will refuse for political and ideological reasons, with the result that many poor people, especially in red states, will not get Medicaid for many years, if at all.  If you oppose the Medicaid expansion, that presents no problems. It is a genuine problem, however, if you support the federal government’s expansion of medical care to the poor. Are the advantages of this model of federalism worth the costs?

On the other hand, are court-enforced limits on federal power actually necessary to give the states leverage in implementing federal programs? Suppose that NFIB v. Sebelius went the other way and the federal government was allowed to impose its Medicaid expansion on all of the states. Wouldn’t recalcitrant states still have “the power of the servant,” because they would implement the Medicaid expansion in their own way?

The difference between the two scenarios is that in the first scenario, poor people don’t get Medicaid at all in some red states, while in the second, poor people get Medicaid in the way that state opponents of Obamacare prefer. Which result in NFIB v. Sebelius is more consistent with the premises of the new nationalism? If both results are consistent, what advice does the model give to judges?

A second way for courts to implement the new nationalist model is to use clear statement rules rather than imposing simple limits on federal power.  Clear statement rules do not prevent the federal government from acting; rather they require clear statements from Congress before federal power can be exercised in certain ways. Two examples are Gregory v. Ashcroft and Bond v. United States.  Clear statement rules require additional political capital to achieve certain goals.  Therefore, they may indirectly enhance the role of states as stakeholders in federal policy.

If one adopted the new nationalist approach, would any of the cases you have read so far come out differently? Or is the primary value of this approach to give a different set of perspectives on how and when to empower states in their political relationships with the federal government?

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