Federalism

More on Liberals and Federalism

In this follow-up to my Washington Post article on the same subject, I consider whether current liberal support for federalism is purely opportunistic, and whether the political left is inherently pro-centralization.

|The Volokh Conspiracy |

My recent Washington Post article on growing liberal support for federalism generated considerable interest. In this follow-up, I am going to further explore two possible reasons why liberal interest in federalism might turn out to be largely ephemeral: the possibility that it's all a matter of "fair weather federalism" and the idea that modern liberalism is inherently centralizing, and therefore inherently inimical to constitutional limitations on federal power.

I. Is Fair-Weather Federalism Inevitable?

Fair-weather federalism is all too common. Both liberals and conservatives routinely invoke federalism when their opponents control Congress and the White House, only to ignore it when they hold the same reins of power themselves. There are plenty of recent examples during both the Obama and Trump administrations. If a Democratic president is elected in 2020 or 2024, liberal support for federalism could wane, much as many conservatives are now willing to turn a blind away to the Trump administration's undermining of constitutional limits on federal power in its attempts to coerce sanctuary cities.

However, it is not true that attitudes towards constitutional limits on federal power are purely opportunistic. While there have been many cases of such opportunism, there are plenty of counterexamples, as well. With the exception of one unusual case, conservative judges have almost invariably ruled against the Trump administration's recent attempts to coerce sanctuary cities by attaching new conditions to federal grants. In Gonzales v. Raich (2005), all four liberal Supreme Court justices ruled that the Commerce Clause allows the federal government to ban the possession of medical marijuana, even though these justices likely favored the state policy that got overridden by the federal government (3 of 5 conservative justices voted to strike the policy down, even though they probably sympathized with the federal ban on policy grounds). I  believe Raich was a terrible decision. But it's hard to deny that at least 7 of the 9 justices who voted on the case prioritized their general principles over immediate policy priorities.

More generally, from the New Deal until quite recently, conservatives tended to favor tighter judicial enforcement of federalism than liberals did; and this remained true across a wide range of administrations. Some specific policy controversies were obvious exceptions to this general rule. But the existence of exceptions does not prove that the rule was totally absent. Generally speaking, judges have tended to be more consistent in their positions on federalism than politicians and activists, in part because they are more removed from short-term policy debates, and have less incentive to sacrifice principle for the sake of immediate policy advantage.

It is easy to be cynical about not only federalism, but pretty much any other constitutional principle. Just as there are cases of fair-weather federalism, there are also cases of fair-weather separation of powers, fair-weather freedom of speech, fair-weather protection for the rights of criminal defendants, and so on.

In each of these fields, we can find people who support rigorous judicial enforcement of limits on government power when it benefits their side of the political spectrum, and a highly deferential attitude when it does not.  Even so, there is broad agreement that each of these types of rules needs to be enforced with at least some substantial consistency and courts often do just that, even when the judges don't  particularly like the immediate political consequences. For example, many of the Court's most important free speech decisions involve communist and neo-Nazi speakers whom few if any mainstream jurists feel any sympathy for.

The key question is whether judicial enforcement of federalism can become one of those principles for which there is substantial cross-ideological support. For the reasons outlined in my Washington Post article, I think liberals—as well as conservatives—have good reason to conclude that the answer should be "yes," even if they did not think so in previous eras.

Among other considerations, federalism—like freedom of speech—provides valuable "insurance" against situations where your opponents hold the reins of power in Washington. Such insurance is especially valuable during periods of severe political polarization, like the one we are in right now. At such times, we need more protection against political adversaries than may otherwise be the case, because they are especially likely to enact policies deeply inimical to our values or interests. More generally, tighter limits on federal power can help promote coexistence in a large and highly diverse society.

The fact that liberals have good reason to commit to federalism doesn't mean they necessarily will. The "fair weather" approach is still tempting to many (as is also the case with many on the right). But it is not inevitable  they will succumb to it. Moreover, we can achieve adequately broad support for federalism even if not all liberals (or all conservatives) are genuinely committed to it. We just need a large enough cross-ideological coalition of committed federalists that they can make their influence strongly felt, often by working together with "fair weather" types on a case-by-case basis.

Some fair-weather federalism is probably inevitable. But it is not inevitable that it will dominate the system.

II. Is the Left Inherently Centralizing?

A deeper reason for pessimism about liberal interest in federalism is the concern that the  political left is inherently pro-centralization. If their ultimate goal is to enforce uniform national policies on most significant political issues, then they are unlikely to ever support meaningful limits on federal power, except perhaps as an occasional short-term expedient.

This concern is not unreasonable. At least since the early twentieth century, the political left in the US has favored extensive federal government control of the economy, and—often—increased federal regulation of a wide range of "non-economic" issues.

In its most extreme "democratic socialist" variant, the modern left probably really is inherently inimical to federalism. It is difficult to think of any area that socialists would be willing to leave beyond the scope of federal power. And the kind of large-scale central planning required by socialism is ultimately incompatible with any significant autonomy for sub-national governments. While modern "democratic socialists" claim they do not advocate government ownership of the means of production, the extent of federal control they want to impose by less direct means, nonetheless amounts to central planning of the lion's share of the economy.

The nonsocialist left is a different story. There is no inherent incompatiblity between advocating extensive—but not comprehensive—federal spending and regulation, while also recognizing significant limits on federal authority, including even on some "economic" issues. Liberals of this type could support broad federal power to spend money on "universal" entitlement programs, while also barring federal spending on a variety of local projects and giveaways to narrow special interests. In this way, they could support meaningful limits on federal power to spend money under the General Welfare Clause.  Similarly, nothing in the non-socialist liberal agenda requires unlimited federal power to pressure states through "commandeering" or conditional spending grants. Indeed, as the sanctuary cities cases demonstrate, limits on that power can actually help protect liberal values.

Looking around the world, it is simply not true that the left universally rejects structural constraints on central government power within federal systems. In nations such as Canada, Australia, Germany, and Switzerland, the enforcement of such constraints enjoys broad support and does not systematically divide people along right-left ideological lines.

The main factor that has made the US different for most of the last 70-80 years is the association between "states' rights" and oppression of racial and ethnic minorities. There is indeed anawful history of state governments repressing minorities.  And, at several crucial points, federal power has curbed that oppression—most notably during the abolition of slavery and the triumph of the Civil Rights Movement in the 1950s and 60s.

Thus, many on the left came to the conclusion that the state autonomy is inimical to minorities, while federal power is their friend. The idea that this is  true as a general  general rule is, in my view, an oversimplification of American history. But, whatever may have been the case in earlier eras, it is not true today, for reasons well-explained by Yale Law School Dean Heather Gerken. As I emphasized in my Washington Post article,  the Trump era is a dramatic illustration of this point, which Gerken began to make long before.

When it comes to federalism, the political left is currently flux, as it also is on a number of other issues. It is difficult to say where they will ultimately come down. It may turn out that liberals will continue to differ among themselves on federalism for some time to come.

But there is a real chance that left-wing support for robust limits on federal power will continue to increase. That tendency began to emerge before Trump. But the liberal reaction to his administration has given it a major boost. To the extent that the developments in American law and politics that gave rise to Trump go beyond his personal idiosyncracies (and I believe they do), the changing ideological valence of federalism might well outlive his time in the White House.

 

 

 

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  1. As long as American politics remains in the grip of corporate managers, the left has little choice. It must oppose federalism and favor activist central government. State governments—and especially smaller state governments—have proved again and again that they are easy targets for pro-corporatist political corruption.

    Apparently it takes a government of considerable size to face down big corporations, with the economic clout they can wield on a local scale. I suggest that if Somin really wants to see more federalist support from the left, the place to start would be to use the federal government to strip corporations of much of their political clout—at both the state and federal levels. After that, advocacy on behalf of federalism might make more sense to leftists.

    That’s a pipe dream of course. Whether Somin knows it or not, much of the rightist energy in favor of federalism is coming from corporations—precisely because they know that compared to the federal government, most state governments are push-overs.

    A possible constructive compromise? Instead of calling for more federalism, call instead to restore more power to congress, and especially to the house of representatives. Fans of more limited government on the right would see a reduction in executive power. The left would get more help against corporate encroachment on politics from the most-accessible branch of the only government big enough to make a difference. Maybe in time that would provide enough leverage against corporatism to pave the way for the kind of federalism Somin wants.

    Of course, when you think about it, re-empowering the house of representatives is likely to be another non-starter for plutocrats.

    1. And if a proposed new regulation or law is costly, well, why shouldn’t politicians here get a piece of the pie by reducing or canceling it in exchange dor donations, legal or otherwise, like they do around the rest of the world, or through all human history.

      It is a fool’s errand in such an analysis to put on blinders and ignore that people go into government for the purpose of getting in the way of things. This is the basis for corruption around the world. Had to bring $200 to the DMV or wait two years for a license lately? Paid 10% of the cost of a new building or be denied a permit?

      Here they just have to hide it better behind memes for useful idiots to fall for. Hence $600,000 for an environmental study before you can tear down a mural. Same interference for the same reason.

    2. Whether Somin knows it or not, much of the rightist energy in favor of federalism is coming from corporations—precisely because they know that compared to the federal government, most state governments are push-overs.

      Whether you know it or not (I’ll go with “not”), Somin knows that this is overly simplistic and mostly wrong. Small corporations may like federalism, for the same reason individuals do: it allows them to vote with their feet and choose the legal regime they operate under. But big corporations have to operate nationwide, so they prefer centralized regulation so that they have only one set of rules they have to comply with rather than having to deal with 50 different sets of regulations.

      (We can see this dynamic at play right now with some of the big tech companies like Facebook. Faced with California enacting a bunch of onerous “privacy” regulations, they are now heading to Washington to try to get a single set of laws that are laxer and override state laws.)

      1. DMN, there is something to what you say about the convenience of one national standard. But big corporations choose the legal regimes they operate under by taking over state governments anyway, especially in smaller states. Conveniently uniform national standards don’t apply at all to the purely-local interactions which all corporations, no matter how large, get involved with. Corporations need real estate deals for their facilities, and accommodation on all the state rules they want to break to make the deals cheaper. Corporations want to set one state government against the others, to get tax-concession bidding wars going for the privilege of hosting new corporate facilities. Corporations want to know what state and local governments are willing to do in the way of providing free infrastructure.

        There is a thriving lobbying industry at work already. It specializes in recruiting corporations which might consider moving some part of their operations, and then shopping that move to multiple states, to see which state will concede the most.

        All that is before you get to the phenomenon of the big, one-state corporation, which doesn’t need uniform standards in other states, because all its operations are in this state. If you are Idaho Power, just owning the statehouse in Boise is all you need.

  2. ” There is no inherent incompatibility between advocating extensive—but not comprehensive—federal spending and regulation, while also recognizing significant limits on federal authority, including even on some “economic” issues. ”

    Actually there is. The reason is that those “significant limits on federal authority” are constitutional in nature. They derive from the same Constitution which denies the federal government that “extensive” reach the left wants to exercise.

    The left has already recognized the Constitution as an obstacle to their program, and targeted it for destruction. You can see this, for example, in the way they teach that the Constitution’s purpose was to safeguard slavery, and attribute every facet of the Constitution that gets in their way to this purpose.

    The left’s goals are utterly incompatable with limited government, let alone federalism, and they know it. There may be occasional expedient alliances on the topic, where the right, out of principle, joins with the left in attacking some right-wing program that runs contrary to federalism. But don’t expect the left to join any such alliance where the target is something that advances their own goals.

  3. Brett, once again delving deep into the liberal soul and finding that they are all villains but lying about it.

    1. “delving deep ”

      Not really. Its a surface trait.

    2. If the shoe fits

    3. I take it you disagree with that? What are the signs that characterization is incorrect? What would they do differently if they actually were villains?

      Would they spend the last 25 years working to increase racial and class division within the US for profit and political gain? Is that what villains would do? That’s what liberals do now.

      What’s the non-villainous explanation for Antifa? They’re actually out walking their dog in those masks?

      1. They’re disgusting, evil people who seek to destroy the West for their own power.

        1. rating: 1 star. not a good attempt at trolling.

          1. I’m not trolling.

      2. If you really think liberals are knowingly hostile to the Constitution, as opposed to just operating with a different interpretation than you have, then what else is there to discuss?

        If you can’t see how better to screw up America than your political opposition, that’s a failure of imagination and vastly too much pride in your own paradigm.

        Antifa are young violent chuckleheads that have seized on partisanship as their excuse. Just like the Proud Boys and other such trash on the right.

        1. There’s nothing else to discuss. The left and right are at war, and only the left sees it. If the right did, the left would be massacred within a few weeks, as the right has all of the weapons, training, courage, and wherewithal.

          1. Bigotry is not courage. Ignorance is not wherewithal or training. Conservatives get stomped in our culture war for ample reasons, lack of character and education among them.

        2. Should I post quotes from liberals and progressives complaining about how the constitution stands in their way?

          Those Antifa may not be true Scotsmen, but the scarcity and relative quiet of complaints from liberals about Antifa violence tells us that some violence gets a wink and a nod, a blind eye turned.

          1. Do you see how much weaker this ‘I found some bad quotes and demand more rage against Antifa’ is than your original statement? I’ll bet you don’t.

            How many people do you think are in Antifa? How do you think that compares to the ‘good people on both sides’ Trump white-supremacist footsie?

            Your hyperbole just makes you look weak and your worldview look pinched by partisanship.

            1. “Who are you going to believe, me or your lying eyes?”

              1. Ben radically contracted his thesis, and even then had to rely on a dog that doesn’t bark argument that the GOP failed with respect to militas and neo-Nazis years ago.

      3. Ben, that kind of turn-it-around argument is what the South said, to build a moral-looking justification, as they fought to erect Jim Crow on the wreckage of reconstruction. The tell is that folks who resort to the turn-around trick always end up as self-parodies, ostensibly solicitous and concerned, but solicitous and concerned about people that everyone can see they actually hate.

        Let’s see some commitment to due process for asylum seekers on the southern border, before you come on about people who work “to increase racial and class division.” Complaints about people who work “to increase racial and class division,” were what Jim Crow politicians trotted out to block civil rights and integration during the first 60 years of the 20th century. I grew up in the 1950s, hearing that crap word-for-word from Jim Crow politicians.

        1. So no answers to anything then. You guys are above answering and beyond accounting and none ought dare question it.

          And no turn-it-around arguments allowed in double-standards land!

          1. You’re not questioning anything – you’re accusing liberals of being the worst they could possibly be, with all that implies about what means are on the table to stop them.

    4. Leftists habitually lie, because if they ever admitted what they really believe, they’d never be allowed anywhere near the levers of power.

      1. You’re calling me a liar?

        1. If you’re a true liberal then you’re not a leftist. They’re vindictive bigots.

          1. No true leftists. Convenient.

            I know leftists. You’re right, they won’t have my squishy incremental pragmatic self. But they, like most idealists, don’t bother to lie.

            1. Since idealists lie to themselves about reality, you can’t put a lot of stock in their overall concept of honesty.

              1. I would be cautious about that. Libertarianism is about 93% idealism, maybe a skosh more.

                1. Well yeah. There’s a reason I’ve called libertarianism a utopian fantasy before. It didn’t really go over well here.

                  1. Escher, my doctor keeps urging me to get my idealism level up. Test results come back, and I generally show a level between 5% and 6%. Research discloses a typical range for the idealism assay at between 8% and 11%, so I am chronically low.

                    The Doc prescribed more time with college freshmen. I tried it, but got a paradoxical reaction. It knocked my levels down, instead of giving them a boost.

                    After internet research, I asked the Doc if I should try a dose of free market economics. He was skeptical. More than skeptical, actually. He said that was dangerous. Pointed out that libertarians run idealism levels so high—typically between 87% and 96%—that they confound medical science. He said, “Nobody understands how they can do that and not be dead.”

                    This is an exact quote, “It’s lucky for society that it takes a genetic predisposition to get it; if you don’t have the gene, it’s rarely contagious. If you do have the gene, you have to be extremely cautious, especially around books. Stick to Malthus and Hobbes. Avoid Rand, Mises, and Marx like the plague. Once a defective idealism gene’s receptors get activated, they shoot your levels so high that it shuts down your body’s defenses. It becomes an uncurable, life-long condition, with catastrophic implications for the victim, for his immediate family, and for Thanksgiving get-togethers. The high social costs of the malady—long accepted among researchers—have only recently begun to be recognized by the general public.”

                    Libertarianism—nothing to fool around with.

  4. “most extreme “democratic socialist” variant”

    in other words The Democratic Party in 2019

    Have you heard the presidential contenders?

    Open borders, taxpayer funded abortion without limits, gun confiscation, confiscatory taxes, complete government takeover of health insurance.

    Somin is painfully naive [at best] to think liberal federalism is anything other than a OrangeManBad tactic.

    1. But hey, at least gay men would be able to get “married” in a Catholic Church, at government gunpoint, while a Catholic photographer has to film this “wedding.”

      1. Good one! Lots of “truth” in humor.

  5. Is this a real, actual question? The Democrats will do what they want will to get power, crying “states rights!” while passing the federal Fugitive Slave Act.

    NOTHING has changed.

    1. Yeah, the pro-slavery people that later formed the Confederacy were bad.
      Weird which party is super into that iconography these days. And which party continues to cry states rights even as they get rid of all the minority protections and voting opportunities they can. And which is telling American Citizens to go back where they came from.

      Yes indeed, there’s one party acting like those olde timey Democrats, but it ain’t the Democrats!

      1. You NEVER argue honestly .. but I understand you still being angry about the Republicans taking them from you and you’re gonna hang on tight this time — good luck!

      2. The Dems have so TOTALLY changed!

        They used to import brown folks from Africa to work in their fields and mammy their children.

        Now they import brown folks from Central and South America to work in their gardens and mammy their children.

        Wait, what were we talking about?????

        1. I’ve got bad news about which party has the kind of people who use illegals – it’s both!

          But nice attempt to divert from the topic at hand, wherein your original argument did not fare so well.

  6. Federalism and sectionalism are deeply intertwined. The left in the US has often used sectionalism to cover their own sins. The left has denigrated the South and Mid-West as “flyover country” inhabited by stupid uneducated bigots. The have failed to look at their own backyard where many of the same injustices they decry in other places were perpetrated by other means.

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