A new detente between federalists and nationalists?

In a series of thoughtful posts at the Balkinization blog, and an important recent article, Yale Law School Professor Heather Gerken proposes a "detente" between advocates of federalism and defenders of expansive national power.

To her fellow liberals (many of whom are, as she puts it, "traditional nationalists"), Gerken argues that "devolution can further nationalist aims." These include promoting beneficial experimentation in public policy, increasing social welfare, and aiding traditionally disadvantaged groups. In previous work, she has argued that, under modern conditions, decentralized federalism can benefit unpopular racial, ethnic, and other minorities.

For traditional supporters of federalism, Gerken's message is that state influence can be preserved even in an age of expansive federal power, and that we (for the most part) don't need judicial enforcement of constitutional limits on federal power to do it. As she points out, state governments still have enormous clout, often in part because of their role in implementing federal programs, and influencing federal policy.

Thus, Gerken hopes that traditional nationalists on the left will accept that federalism and political devolution has greater value than they traditionally thought. In exchange, "traditional federalists" on the right will accept most, if not all, of the expansion of federal power since the New Deal, and cut back on efforts to promote federalism through judicial review.

Gerken's work is a great contribution to the literature, and many of her insights are valid. I believe she is right that federalism can benefit minorities in many ways. Indeed, I think she understates the extent to which this is often true. She is also right to argue that state governments retain extensive influence over public policy even in a post-New Deal world where courts do little to protect to their autonomy. Doomsayers who claim that the states are about to sink under the weight of the federal leviathan have so far been proven wrong.

Nonetheless, I am not prepared to sign on to the detente she offers. While the massive growth of federal power has not destroyed all state influence, it has greatly limited the scope of their autonomy, often in harmful ways. Today, one-size-fits-all federal policies preempt state, local, and private initiatives in areas as varied as health insurance, drug policy, and even the design of light bulbs and toilet seats. The political influence of the states has not prevented this, and in some cases has even helped promote it. If we truly believe, as Gerken argues, that state diversity and experimentation are valuable, there is a strong case for cutting back many of these exercises of federal power.

In addition, Gerken is not entirely correct in framing the traditional debate over federal and national power as a conflict between those who support centralization to promote "nationalist ends" and those who support federalism in order to promote "state-centered ends." Many of us who support strict limits on federal power do so not because we care about states and "state-centered ends," but because we want to create opportunities for people to vote with their feet in choosing between jurisdictions with divergent policies. Foot voting is often superior to ballot box voting in a variety of ways, not least because it leads to better-informed decision-making. And we want to give states incentives to compete for foot-voting individuals and businesses by adopting policies that are attractive to them.

The Gerkenian approach to federalism is indeed one in which states wield considerable influence. But much of that power resides in the ability to lobby for federal grants and shape the design and implementation of federal programs. That is not the type of state influence conducive to promoting effective foot voting. Indeed, in some cases it is actively inimical to it, because it might enable states to lobby for federally-enforced cartel systems that block competition rather than promote it.

Finally, as I have argued in a previous friendly critique of Gerken's work, if we believe (as Gerken does) that federalism provides valuable opportunities for minorities disadvantaged in national politics, then there is a strong case for having some constitutionally enforceable limits on the extent to which those minorities' decisions can be overridden by federal power.

Interestingly, Gerken's most recent work partly acknowledges the force of some of these objections. While she continues to oppose enforcement of most substantive limits on federal power, she now endorses "second-order policing of federal-state bargaining," such as Chief Justice John Roberts' ruling in NFIB v. Sebelius, which curbs federal ability to use conditional spending grants to "coerce" the states. While it is not clear whether she agrees with the specifics of that decision, she seems to endorse the general principle behind it. This is an important evolution in Gerken's thinking.

But I would urge her to go further in the same direction. If we need judicial enforcement of limits on the federal government's ability to coerce the states through bargaining, the same considerations also justify limiting the federal government's ability to override the states altogether, without even giving them the sort of quid pro quo they get from conditional spending programs. Indeed, "first-order policing" of the scope of federal power may be an easier task for the judiciary than second-order supervision of federal-state bargaining, which would require judges to address such difficult questions as what forms of pressure qualify as "coercion."

I do not mean to suggest that states should always be shielded from federal interference. There are some issues, such as national defense and large-scale environmental problems, that can only be effectively addressed at the national level. In addition, there are many situations where state law should be constrained for the sake of promoting individual rights. Often, the best and most complete form of decentralization is devolution of power to individuals and civil society.

Overall, however, I think there is still a strong case for imposing tighter limits on federal power than Gerken advocates. Indeed, that case is implicit in many of her own ideas. Gerken's work is a major contribution to the literature on federalism. If her ideas become even more widely accepted, they could help diminish the intensity of the longstanding cold war between centralizers and advocates of state autonomy. But I, at least, am not quite ready to sign on to this particular version of detente.