Red State Federalism
posted by Robert Schapiro
It is a great pleasure to be a guest blogger. My current interests center around federalism. My posts likely will as well. Here goes.
Did a vision of progressive federalism die in the desert of Arizona? No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.
In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism. We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care. Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism). Climate change was not really a federal issue or really a state issue. Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns. Federalism functioned through the dynamic overlap and interaction of state and federal authority. Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.
But where does this leave Arizona? Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation. Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism? The answer is yes.
Under no view of federalism can states trump valid federal law. The Arizona statute may well be preempted by federal law, and the state challenges to health care legislation will surely founder on the shoals of modern constitutional principles of broad national power. The Supremacy Clause of the United States Constitution, the key linchpin of our federalist system, dictates that federal law will prevail over contrary state enactments–and that all judges shall so declare.
What then does federalism contribute in these situations? Federalism provides a state governmental platform for voicing dissent from national policies. Federalism means that states can pass legislation in tension with federal policy and can file suits against the federal government. Federalism empowers the states to give public and powerful expression to opposing views.
Federalism is not vindicated only when states promote “better” policies than the federal government. Federalism allows states to offer alternative perspectives, expressing the deeply felt sentiments of their citizens. None of this is intended to minimize the real harm of invidious legislation. The outcome of the state governmental process may be ugly. The voices from the desert may seem shrill and hostile. That is a cost of federalism, but over the long run, polyphony or dialogue seems superior to monologue, even if we do not like all of the sounds. Federalism forces us to face the music.
May 5, 2010 at 9:55 am
Tags: Constitutional Law, Current Events, federalism
Posted in: Civil Rights, Constitutional Law, Health Law, Immigration, Politics, Uncategorized
Print This Post
Responses (3)
Jason Mazzone - May 7, 2010 at 11:52 pm
This is a very interesting post. I have two brief comments: (1) Arizona might say that its only opposition to federal law is to the lack of enforcement on the part of the federal government. This, then, might be an unusual kind of dialogue: the state is not expressing hostility to federal law but is instead asking for a stronger federal presence. (2) I wonder whether you think that state expression informs (or should inform) our understanding of the scope of federal power. I can see two ways in which this might occur. State opposition to federal law might suggest that Congress has exceeded its bounds. State support for federal laws (an issue that arose in US v. Morrison) might suggest that Congress has acted properly.
Robert Schapiro - May 8, 2010 at 2:01 pm
Jason, thanks for your thoughtful comment. I think federalism allows a state to object to federal policy, whether that policy is expressed through statute or through (non-)enforcement practice. Further, I think that state expression does and should inform our view of appropriate federal policy. However, it is hard for me to see how state expression can influence the constitutional scope of federal power. The constitutional independence of federal and state power is an important feature of our federal system. That is the message of U.S. v. Morrison and of Gonzales v. Raich. Arguable exceptions exist. For example, state actions can create a predicate for a federal response under the enforcement clause of the Fourteenth Amendment, but I think these areas remain exceptional.
Jason Mazzone - May 8, 2010 at 5:51 pm
The idea would be that in close questions on the scope of congressional power (if there are any such questions anymore), state support for a contested federal law would weigh in favor of finding congressional authority.
There is some support for this idea in Harlan’s opinion in Champion v. Ames, 188 U.S. 321, 357 (1903): “In legislating upon the subject of the traffic in lottery tickets, as carried on through interstate commerce, Congress only supplemented the action of those states–perhaps all of them–which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their respective limits. It said, in effect, that it would not permit the declared policy of the states, which sought to protect their people against the mischiefs of the lottery business, to be overthrown or disregarded by the agency of interstate commerce.”
Ames, was, of course decided in a different age. And you are right that this suggestion finds no basis in Lopez or Morrison. So as a practical matter the dialogue you identify is one that can have political significance but it does not inform constitutional interpretation.
I look forward to reading the book.
Leave a Reply