Balkinization: Federalism or Politics: A reponse to Rick Hills

Federalism or Politics: A reponse to Rick Hills

Heather K. Gerken

--> I’ve spent a long time arguing that federalism doesn’t have a political valence, so it’s been nice to see “progressive federalism” and the “nationalist school of federalism” getting some attention in the wake of the election. While I’m glad to be in conversation with a new group of academics, I’ve nonetheless found myself gravitating to the work of those with whom I’ve been debating these issues for a long time. Two of them have recently written quite thoughtful posts on this federalism revival – Rick Hills and Ilya Somin. I’ll respond to Rick today and Ilya tomorrow.

As Rick correctly notes, it’s a political ritual for those who lose the presidency to discover a love for federalism. Rick wonders, though, whether progressives have paid their “federalism insurance premium.” He compares federalism to “an insurance policy, protecting the risk averse against loss of national power” and insists that “the protection comes at a price: One must pay the ‘premium’ of protecting subnational power when one controls the national government, tolerating subnational experiments that one regards as more Frankenstein than Brandeis.”

I think Rick is both right and wrong. He’s surely right that those who control national power can be more or less tolerant of disagreement. I just don’t think this phenomenon has much to do with federalism. A handful of people – including Rick and myself – are committed to the notion that states and localities play a useful role in a well-functioning democracy (though I take a nationalist’s view as to what constitutes a well-functioning democracy). Rick and I also agree that federalism and localism allow for a distinctively American variant of a loyal opposition. But as Rick himself observes, most people – including most politicians – are fair-weather federalists. Issues, not institutional commitments, drive debates.

That’s why I don’t think it matters that much whether one side or the other has paid up its “federalism insurance premium.” Even if progressives learn to love federalism, I don’t think blue states will be more likely to win concessions from a conservative federal government. Nor do I think that conservatives – who have often allied themselves with federalism – will hesitate to impose national mandates where they can. This isn’t a knock on conservatives; progressives would behave in exactly the same fashion were the tables turned.

Rick’s core point, though, is right – we should worry about a give-and-take between liberals and conservatives. It’s just that the give-and-take has more to do with politics than institutions. Put differently, it’s not federalism that matters here, but pluralism. And a pluralist system only flourishes when both sides are willing to live and let live. Rick writes of the need to “tolerat[e] subnational experiments that one regards as more Frankenstein than Brandeis,” but the real problem is the underlying assumption that one’s opponent is closer to Frankenstein rather than to Brandeis. Maybe skepticism of one’s political foes depends on debates over decentralization, but I suspect it has a great deal more to do with the forces that political scientists have identified as the sources of polarization.

Federalism, after all, is just one of many institutional and legal strategies we use to instantiate pluralist politics. As Rick notes in the close of his post, “through the exercise of self-control across different political regimes, each Party can slowly confer on institutional arrangements a permanence (sentimentalists would even say "sanctity") that survives change of regimes, sending a signal to their opponents that their self-control will be reciprocated when the tables are turned.” That includes not just federalism and the filibuster (Rick’s example), but a range of institutional practices.

Unfortunately, we’re seeing lots of evidence these days that our “pluralism premiums” are not paid up; federalism is just part of that story. Progressives would point to the efforts of North Carolina’s GOP-controlled legislature to disempower their newly elected Democratic governor and the Senate’s refusal to grant Merrick Garland a hearing. Conservatives would point to the efforts of the Obama administration post-election efforts to protect his environmental policies from reversal or the blue states and cities promising to resist the new administration’s policies before Trump has even set foot in the White House. Perhaps the best proof of pluralism’s decline is the fact that I have to provide separate lists to make my case, precisely because conservatives and liberals agree on so little these days. We are all watching the same story unfold during Obama’s last days in office, but we have completely different views of whether Trump is violating “sacred” norms . . . or Obama is. Is Obama merely “cement[ing]his legacy” or “putting up policy roadblocks”?

In sum, federalism is like pretty much everything else in a well-functioning democracy; while it can help politics works, it also depends on politics to work. Needless to say, reciprocity and trust are hard to build but easy to dismantle in a system like our own. I take it that is Rick’s core concern, and on that point we agree entirely.

Posted 5:30 PM by Heather K. Gerken [link]