Tuesday, January 03, 2017

Sovereignty is the Wrong Path for Federalism: A response to Ilya Somin

Heather K. Gerken

Yesterday I responded to Rick Hills, who has been writing about progressives’ new-found love of federalism.  Today I want to respond to Ilya Somin’s spirited critique of my views on federalism.  Ilya argues that if you believe, as I do, that state and local power serves an important role in a well-functioning democracy, you should favor a sovereignty model of federalism, one that involves judicially enforced constraints on federal power.  Ilya’s point is a serious one and highly intuitive.  If you think state power plays a useful role in our democracy, why shouldn’t judges protect that power?  On this view, just as the First Amendment protects dissenting speech, so too should the Constitution protect what I’ve called “dissenting by deciding” by shielding outlier state policies from national reversal. 

Despite the appeal of Ilya’s argument, I disagree with him for three reasons.  The first is a pragmatic one, familiar to anyone who has taken constitutional law.  Despite the best efforts of the Rehnquist and Roberts Courts, judicial efforts to hold back the tide of federal power have been a failure.  As I’ve written elsewhere, the federal government has a readymade work-around for every pro-federalism ruling that the Court has imposed.  The nationalists have lost battles, to be sure Shelby County v. Holder being the most heartbreaking defeat but they are undoubtedly winning the war.  The Court could, of course, try to do more to limit federal power, but the costs associated with those strategies have proved to be too high even for this conservative set of Justices.  The game is just not worth the candle.

            Second, Ilya and I have a fundamentally different view of what a well-functioning democracy should look like.  Nationalists like myself have always worried about a sovereignty model because it facilitates a retreat from national norms; that’s why slavery and Jim Crow loom so large in federalism debates.  It’s worth remembering that those who favor federalism today generally agree upon a baseline of rights.  But a nationalist should still worry about a model of state power that depends on sovereignty and separation, one that imagines us settling into our all-too-comfortable red and blue enclaves rather than interacting with one another.  My own model of democracy is more nationally oriented and decidedly more agonistic.  I value states because they tee up the conflicts and debates that forge national norms rather than allow us to shield ourselves from the federal policies with which we disagree.  For these and other reasons, I envision states as part of an integrated national system and believe that if the national government wants to play the national supremacy trump card, it can.

            This brings me to the third key difference between Ilya’s account and my own:  I think that sovereignty is unnecessary for states to play this important role in our democracy.  That’s because, as Jason Weinstein-Tull has quipped, the Supremacy Clause trump card turns out to be a jack.  Ilya assumes that for states to be powerful, they must preside over their own empires, wielding power separate and apart from the national government.  But states need not wield the power of the sovereign to serve as sources of resistance and change.  Instead, they can wield what I’ve called the “power of the servant.”  The federal government lacks the resources and manpower to implement its own policies.  As a result, it depends heavily on states and localities to administer federal law.  That dependence, in turn, empowers the states to resist federal policy and engage in what Jessica Bulman-Pozen and I have called “uncooperative federalism.”   By serving as agents of the national government, implementing federal policy from within rather than challenging it from without, states can influence national policy in a number of important ways.

            That’s not to say that courts should play no role in refereeing federal-state relations.  But rather than policing the boundaries of state and federal regulatory arenas, as the sovereignty model suggests, courts should ensure fair bargaining conditions between the states and federal government.  That sounds like an old point – indeed, it’s precisely the aim of process federalism.  But process federalism rests an outdated set of assumptions about the nature of state power.  It makes perfect sense to look primarily to politics to safeguard healthy federal-state relations and to focus on the second-order policing of federal-state bargaining rather than the first-order policing of federal-state boundaries.  But process federalists’ core argument is that states will leverage their connections to federal officials in order to protect state autonomy.  Process federalists’ assumption, in other words, is that federalisms’ end goal is for the states and federal governments to be engaged in the governance equivalent of parallel play. 

          Process federalists begin, then, with the correct insight – that political and administrative integration can preserve a robust role for the states in “Our Federalism.” But they are wrong about what that “robust role” looks like in a world where state power comes from integration and mutual dependence, not separation and autonomy.  That’s why I’ve suggested that any judicial role should embrace what I’ve called a “new process federalism,” one that preserves the right conditions for federal-state bargaining over the role states play inside the federal system rather than preserving the meager role they play outside of it.  The Spending Clause ruling – perhaps even the Court's commandeering ruling, on Rick Hill’s view -- that Ilya cites represent imperfect examples of the type of constraint that I envision.

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