The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Earlier today, National Review published my new op ed on "fair weather federalism," which explains how both left and right could benefit from a more systematic commitment to enforcing limits on federal government power. Here is an excerpt:
The Republicans are supposed to be the party of state autonomy and strict limits on federal power. But you would not know it based on the first six months of the Trump administration. On a variety of major issues involving immigration, law enforcement, and the "war on drugs," the administration's policies exemplify the phenomenon of "fair-weather federalism": respecting limits on federal power only when politically convenient….
Sadly, the Trump administration and the GOP are far from the only fair-weather federalists in politics. Many of the liberal Democrats currently relying on federalism principles to protect sanctuary cities against Trump decried those very constraints in the past, when they impeded progressive priorities.
Both the Left and the Right could benefit from a more principled commitment to limiting federal power…. This is especially true in an era of deep partisan polarization, when Democrats and Republicans are farther apart on most issues than they have been in decades….
Decentralization of power can also help defuse the partisan hatred that is poisoning our politics. If the federal government had less control over our lives, both sides would have less to fear from their opponents' victories at the national level.
Fair weather federalism does have some occasional benefits. But a more consistent and systematic approach would better.
I previously wrote about this issue here, here, and here. I have also written about recent efforts to promote cross-ideological support for federalism, by leading left of center legal scholars Jeffrey Rosen and Yale Law School Dean Heather Gerken.
UPDATE: Dan Cadman of the Center For Immigration Studies criticizes the sanctuary cities part of my op ed in this post. He claims that immigration policy must be a function of the federal government. But he simply ignores the main reasons why Trump's and Sessions' attacks on sanctuary cities undermine federalism: that the federal government cannot impose conditions on grants to state and local governments unless they have been clearly stated by Congress in advance.They cannot be added after the fact by the executive. This is true regardless of whether the purpose of the condition is an issue generally within the power of the federal government or not. In addition, the Constitution does not allow the federal government to commandeer state and local governments to help enforce federal law—even if the federal law in question is otherwise within Congress' power. All sanctuary city policies do is prevent local and state law enforcement authorities from providing assistance to federal law enforcement agencies.