The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yale Law School Professor Heather Gerken has a posted a thoughtful response to my commentary on her analysis of the ways in which liberals and others could use federalism to resist the upcoming Trump administration. We agree that federalism can play a valuable role in many ways. But Gerken argues that we don't need judicially enforceable constitutional limits on federal power in order to do so.
Gerken argues that such limits are both infeasible and undesirable. I think she is mistaken on both counts. We need enforceable limits on federal power so that dissenting states and localities don't get trumped by Trump—or any other federal enforcer.
In Gerken's view, "judicial efforts to hold back the tide of federal power have been a failure." They have indeed not gone as far as I and many others would like. But there has been important progress in recent years. That progress has gone far enough that many of the liberal proposals for resisting Trump actually rely on Supreme Court decisions limiting federal power. As I noted in my earlier post on Gerken's work, this is true of her own and other liberals' suggested strategies for protecting "sanctuary cities."
Moreover, judicial enforcement of federalism could be much more effective if it enjoyed broader support, particularly from liberals. If Gerken and other leading liberal scholars and judges come around on the issue, the courts could do a lot more to restrict federal power than is currently the case. As with most forms of judicial review, judicial protection for federalism is likely to be stronger if it enjoys substantial bipartisan support. There is much that liberals could accomplish if they join with libertarians, conservatives, and others to help make federalism great again.
Gerken also wants the federal government to retain the power to "trump" state policies because she wants a form of federalism that enables states to help "forge national norms rather than allow us to shield ourselves from the federal policies with which we disagree." As discussed in my earlier post and earlier critiques of Gerken's work, I think the idea of a federal trump card is at odds with Gerken's own emphasis on the value of federalism in protecting vulnerable dissenters and minorities. I cannot resist adding that the trump card looks even more dubious than usual in the soon-to-be era of Donald Trump. A trump card that regularly falls into the hands of Trump and his ilk is not one that liberals—or the rest of us—should support.
States that adopt innovative policies can indeed help create better norms that spread to other parts of the nation. But they don't have to do that through federal coercion that compels the rest of the country to adopt them. In many cases, the better approach is a combination of competition and expanding opportunities for people to "vote with their feet" for better jurisdictions. Competition and foot voting put pressure on underperforming states and localities to improve their policies, while giving citizens greater freedom and more choice than is available with top-down federal norm-setting through trump cards (or even Trump cards).
Finally, Gerken reiterates her longstanding argument that states don't need enforceable constitutional protections to resist the federal government, because they can often do so in other ways. She is surely right to argue that state resistance to federal dictates does not always depend on formal constitutional rules. But, in the absence of enforceable limits on federal power, such resistance will often be either ineffective, or unlikely to arise in the first place.
For example, state and local resistance to Trump's potential attacks on sanctuary cities is not likely to succeed if the federal government could simply order local officials to do its bidding, on pain of severe penalties. State and local resistance to this and other federal policies can also be undermined (and often has been) by conditional federal grants, especially if there are no limits on the scope and extent of the conditions and associated penalties for violators.
It is true, as Gerken famously put it, that, absent enforceable constitutional limits on federal power, states and localities can still wield the "power of the servant." But they can accomplish a lot more if they were also masters of their own domain. There is a reason why we normally assume that masters have greater autonomy than servants do. To adapt one of Gerken's other famous phrases, those who value "dissenting by deciding" should help ensure that dissenting states actually have the final power of decision over some range of important issues. Otherwise, they might get trumped by Trump.
UPDATE: Gerken has also written a post responding to NYU Professor Rick Hills' discussion of federalism as a form of insurance. Hills has posted a rejoinder here. I offered some thoughts on Hills' insurance analogy in this post. I think both Gerken and Hills make some good points in this exchange, though my own view is closer to Hills'.