The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the few beneficial effects of Donald Trump's unexpected election victory has been a renewed interest in federalism among many on the left. In recent days, prominent liberal legal scholars Noah Feldman and Jeff Rosen, and political scientist Corey Brettschneider have all published notable articles on how state and local governments can use federalism to curb Trump and protect vulnerable minorities. All three argue that liberals should make use of constitutional constraints on federal power traditionally championed by conservatives and libertarians, including the conservative majority on the Supreme Court. Feldman's article on how federalism can be used to protect sanctuary cities actually makes many of the same points as my own earlier piece on the same subject.
Some conservatives and libertarians will be tempted to dismiss the new liberal interest in federalism as unprincipled opportunism. Until recently, most liberals forcefully opposed the pro-federalism Supreme Court decisions many now seek to rely on to shield blue states against Trump. The next time there is a liberal Democrat in the White House, perhaps they will do so again.
"Fair weather federalism" is indeed a common phenomenon, on the right as well as the left. Both Democrats and Republicans tend to support expansive federal authority when their side is in power in Washington, and view it more skeptically when they are on the outs. It's certainly possible that this will turn out to be just another iteration of the same old story.
But if we want to break this sad pattern, we should spend less time on recriminations over past inconsistencies and more looking for ways to build a durable cross-ideological coalition in favor of stronger enforcement of constitutional limits on federal power. In this context, it is important to recognize that newfound liberal interest in federalism is not solely a result of their fear of Trump. In recent years, some on the left have shown a greater openness to setting limits on federal power, and scholars such as Heather Gerken have pointed out that state and local governments now often protect vulnerable minorities better than Washington does.
Liberals could potentially build on these ideas to use federalism as a bulwark against Trumpian abuses. Their chances of succeeding in this endeavor, however, are likely to be greater if they can form a coalition with at least some like-minded conservatives and libertarians. A cross-ideological case for federalism is more likely to prevail in court challenges to Trump policies (which are likely to be heard a Supreme Court with a conservative majority), and more likely to succeed in the political arena as well.
If Trump attempts to implement the populist/nationalist agenda he campaigned on, there might be more opportunities for such alliances than in the past. In addition to drawing opposition on the left, the Trumpist agenda on constitutional and other issues also includes many elements inimical to libertarians and a good many constitutional conservatives—myself most definitely included. Many of us have been arguing for tighter enforcement of constitutional limits on federal power for many years, and would welcome greater cross-ideological cooperation on that front.
A good many liberals are understandably hesitant to commit to enforceable limits on the scope of federal power because of a fear that doing so might inhibit federal efforts to protect racial, ethnic, and other minorities against state and local oppression. But even very robust federal antidiscrimination efforts do not require virtually unlimited federal power to regulate anything that might have some effect on the economy, or nearly unconstrained federal authority to use conditional grants to pressure states and localities to do their bidding. Principled liberals can favor broad federal authority to protect minority groups under the Fourteenth Amendment, while simultaneously enforcing tighter limits on Washington's power in other areas. We can make federalism a bulwark against national government oppression without returning to the bad old days when "states rights" was a shield for slavery and segregation.
As the Trump agenda suggests, federal power that has few or no constraints across the board can actually be a menace to minority groups. Other things equal, oppressive federal policies may actually be even more dangerous than comparable state and local ones. Federal policies affect more people, and are more difficult to escape by "voting with your feet" in favor of more tolerant jurisdictions.
It would be naive to expect left and right to reach a complete consensus on constitutional federalism anytime soon. There are still many obstacles to cross-ideological cooperation on these issues. Some liberals will continue to support nearly unconstrained federal power. All too many on the right will back Trump's policies even when they go against their previous commitments on constitutional issues. And, obviously, there will be continued disagreements over interpretative methodology, such as the longstanding conflict between originalism and living constitutionalism (though the former has attracted some new left-wing support in recent years).
But, in the wake of Trump, perhaps there can at least be broader agreement that there should be serious, judicially enforceable limits on federal power to coerce state governments (whether directly or through conditional grants), and on federal authority to regulate private activities that are not closely connected to interstate commerce. These, after all, are exactly the tools that a Trump-led GOP could potentially use to break the resistance of dissenting state and local governments. They can also be used to harm immigrants and other minorities in a wide variety of ways, and to stifle liberal state policies, such as marijuana legalization.
More generally, recent political history has shown that neither Democrats nor Republicans can expect to achieve uncontested long-term control of the federal government anytime soon. Both sides have to reckon with the likelihood that the other will be in power a substantial proportion of the time. In an age of growing polarization and partisan hatred, both left and right have much to fear anytime Congress and the presidency falls under the control of the other—even if the president in question is not a dangerous demagogue like Trump.
Stronger enforcement of constitutional limits on federal authority cannot fully solve these problems. But by limiting the power available to the ruling party in Washington, it can curb some of the worst potential depredations of each party, and reduce the extent to which each must fear the other. That objective ought to be attractive to a wide range of people who may not otherwise agree on much else. Perhaps, together, we can help make American federalism great again.