Federalism

My New Washington Post Op Ed on How Federalism Became Great Again on the Left

In recent years, many liberals have come to develop a new appreciation for constitutional limits on federal power. Whether the trend continues remains to be seen.

|The Volokh Conspiracy |


The Washington Post Outlook section has just published my article on "How Liberals Learned to Love Federalism." Here's an excerpt:

This is what the battle over federalism looked like in the United States for many decades: Conservatives sought to limit federal power over state and local governments, and liberals tried to expand it….

For many liberals, the ideal of state and local independence was permanently tainted by Southern states' "massive resistance" to federal attempts to remedy racial discrimination in the 1950s and '60s. "If one disapproves of racism, one should disapprove of federalism," political scientist William Riker categorically asserted in 1964.

But in the Trump era, many progressives are rediscovering the merits of federalism. They are finding that state and local governments can serve as an important check on a president whose policies they deplore, and — even more striking, given the history of the debate — that states and cities can provide valuable protection for vulnerable minorities….

Some of the most important legal battles over federalism in recent years are playing out around the question of whether "sanctuary cities" and states that oppose the Trump administration's immigration policies must help enforce them. So far, judges from across the ideological spectrum have largely sided with the sanctuary jurisdictions. But conflicts between "blue" jurisdictions and the federal government have flared up across a range of policy areas, from drugs to carbon emissions to physician-assisted suicide.

Liberals, in short, are helping to make federalism great again.

Some politicians are surely using federalism opportunistically, as a tool to promote their policy preferences. This new liberal appreciation for a legal doctrine they had long resisted may not last into the next Democratic administration. But Americans of every political stripe have much to gain from stronger enforcement of constitutional limits on federal authority. One-size-fits-all federal policies often work poorly in a highly diverse and ideologically polarized nation. Giving more power to states and localities can make it easier for political adversaries to coexist in relative peace….

Federalism can also enhance Americans' opportunities to "vote with their feet," moving to other states or cities whose policies align with their own. With such moves, millions of Americans have, historically, improved their political and economic circumstances….

Of course, it is possible that recent liberal praise for constitutional constraints on federal power will prove to be an example of "fair-weather federalism," the tendency of both left and right to rely on federalism whenever their opponents control the White House, only to jettison it when they themselves are in power…. But there may be a trend here that goes beyond short-term partisanship….

Liberals and conservatives alike can benefit from stronger constraints on federal power. Each party can gain from protecting local diversity and experimentation, and from the insurance federalism provides in times when its opponent hold the reins of power in Washington. Left and right can agree on the need for substantial constitutional limits on federal power, even if they differ on exactly how tight those limits should be….

Liberals may be tempted to abandon their newfound interest in federalism when and if they regain the White House. The "democratic socialist" wing of the Democratic Party would probably prefer to expand federal power over many issues. But Democrats would do well to remember that Trump may not be the last president whose policies pose a threat to minorities or imperil blue-state priorities on the environment and other issues. Nor are the dangers of overcentralization in a diverse society likely to disappear anytime soon.

Part of the article is devoted to Trump-era legal battles over federalism and sanctuary cities—the area where the shifting political valence of federalism is most strikingly evident. I discussed those cases in greater detail in my recent Texas Law Review article about them.

UPDATE: The Washington Post was published on the same day as the Ninth Circuit issued City of Los Angeles v. Barr, the first sanctuary city case grant condition case that the Trump administration actually won, after a long string of defeats. My article was completed and set for publication before the decision came down, so I could not include include it in that piece; indeed, the article and the Ninth Circuit ruling came out at almost the exact same hour. However, I have since written a post about the decision, which is available here. As I explain in the post, the aberrational outcome is in large part the product of the unusual structure of the grant program at issue in the case.