Introduction. It is Saturday morning in New York City and I am at the Joint Program of the AALS Executive Committee and Institute for Constitutional Studies, entitled "WHO IS FEDERALISM FOR: LIBERALS, CONSERVATIVES, EVERYONE, OR POLITICAL LOSERS". Neil Kinkopf of Georgia State introduces the panel.
Randy E, Barnett (Georgetown) is first and begins by discussing Gonzales v. Raich, the case that he argued in the Supreme Court. In that case, the plaintiff's prevailed in the Ninth Circuit on their federalism theory--that regulation of home-grown Marijuana for medical use was beyond the power of Congress. When he was interviewed after the case, he opined that it demonstrated the "federalism is not just for conservatives." But that turned out not to be entirely true in the Supreme Court. Raich demonstrates that the four liberal members of the court put their principled commitment to big national government ahead of their compassion for the sick and dying. There are familiar reasons for federalism--laboratories of democracies, jurisdictional competition, and so forth. One of the important reasons for federalism is illustrated by the place where Barnett's parents live--Leisure World, a private gated community in Southern California. It is a big place--the size of medium-sized city. What makes distinguishes it, is that you cannot buy or rent unless you are 55 years old. These restrictions would be unconsitutional if adopted by a government entity. There are other restrictions and services. Residents seek this community for these restrictions and services.
Federalism is for communitarians and not for libertarians. Or putting it another way, federalism is the way that communitarianism can be reconciled with liberty. Leisure World shows that decentralization has to be implemented at relatively local level. If you tried to impose Leisure World on the whole state of California, it would not be much different than imposing the restrictions at the national level. The real problem with pushing federalism is that states are too big. True federalism might be implemented by "home rule" at the local level going up to the state level through a principle of subsidiarity. This is a libertarian defense of federalism that may not be completely familiar, but it suggests that current ideas of federalism do not go far enough.
This says something about medical marijuana. The culture of California is different than that of other states--more open to medical marijuana. We might understand Kennedy and Scalia's votes as part of the culture wars. The communitarian notion of federal empowers the "hippies of California," and in that sense federalism is not just for conservatives.
Lisa Miller (Rutgers University) begins by suggesting that federalism's values differ with contexts. She says that she will begin with the more agnostic position premised on the idea that winners and losers can trade places over time. Her research is on crime and social control problems. The conventional wisdom is that groups with low resources at the local level can push their agenda at the national level. Federalism provides multiple avenues of access--one of the best examples is the National Rifle Association which has been masterful at exploiting the mutli-level system. But Miller argues, this picture is incomplete. The civil rights movement has occupied a privileged place in the conventional story. There were things about the civil rights movement that were special--including the openness of the national government to its goals after World War II. The national government can be just as parochial as the local level. SIngle-issue groups can dominate the national level, and the local level can be more democratic and pluralistic. This may not be in the public interest, but it can be. This inversion of the conventional wisdom is based on a large body of data on interest group representation and policy agendas--over 60 years in the case of Congress. How can federalism have multiple possibilities? When we look at an issue like crime, federalism provides a fluid jurisdiction. There are very narrow jurisdictional mandates dealing with criminal mandates. So Congress is very open to crime-related agendas. For example, the Mann Act can be explained as responding to an imaginary racial threat, but what the act does is prohibition of women across state lines. The initial justification was in terms of Congress's commerce power. Some groups get on the national agenda more easily than others--in the case of the Mann Act, white majorities get the attention of Congress.
Policy entrepreneurs who are able to push their agenda in Congress generally represent the dominant coalition. At the local level, other groups get representation, including various minority groups and policy-interest groups. At the local level, many more groups are represented than at the national level. So, for example, gun control can be pushed more successfully in particular local areas. This varies by context. What does this say about federalism? One take is that liberals and low-income blacks have a lot of political presence in local politics. The argument that Miller makes is that the problem with federalism is that these groups may be represented at the local level, but the local level doesn't have much power. So federalism Balkinizes low income groups and isolates them from one another. It forces low-resource groups to play on multiple stages, which is very difficult for them to do.
Mark A. Graber (Maryland) says he will talk about "loser federalism." Graber says we might start by imaging a community across from Leisure World which we might call Anxiety World. The residents of Leisure World might have no reason to impose their values on Anxiety World. Suppose that on a particular issue, say gay rights. The issue can prevail if the two communities are seperate--say in Anxiety World, but it will lose if the two communities are combined. There is no principled reason to divide the communities, except that on a particular issue the results will be different if the votes are aggregated at a larger level.
Graber notes that he has no influence on Justice Kennedy. Now let's look at "winner federalism." Suppose you control the national government. You might nonetheless believe in diversity--you could think it is a good thing that there are local variation because there are many paths to the good life. We might think that experimentation is useful. We might think that participation is a good thing, and the smaller the community, the more active the participation in politics.
Graber then suggests that if Barnett's parents don't like a rule at Leisure World, they might be able to organize, but that if there is a federal law they don't like, they cannot organize to change it.
If winners like federalism, they don't need courts. There is nothing preventing those who control the national government from giving authority to local or state government. With the national government, you can have localism. You can give decisions to states, counties, or even individual blocks.
One can ask what constitutionalism has to do with this? From a constitutional perspective, federalism is our only alternative. The constitution doesn't permit localism. It gives us only two alternatives--the national government and states.
What do judges have to do with this? Judges have a constitutional vision that is that of national regime. Almost no one thinks that judges are good at ruling for the hinterlands when they are at odds with the core. It would do a better job of doing that if Supreme Court Justices should be appointed by state governors. If we wanted the Supreme Corut to protect minorities, it should be appointed by the losers for the Presidency and Senate.
The Supreme Court performs a variety of functions. One thing it does is a version of loser federalism. For example, almost no one one thinks that diversity is a good thing for the issue of abortion. But if your coalition cannot agree on abortion, you might kick the issue to the judiciary, which might give it to the states.
The most disturbing aspect of federalism is "hiding the ball." Politicians like to conceal their decisions to move away from the center. One way to hide the ball is to kick a decision to the court and then say it is the judge's fault. It is not simply that the Rehnquist Court has declared more law by the politicians unconstitutional than any other court in history; it is that they Rehnquist Court declared more laws supported by those who nominated and confirmed the Rehnquist Court to be unconstitutional. One might think that the ball ought not be hidden.
Robert A. Schapiro (Emory University) is next. One impetus for the panel is an instrumental use of federalism--that federalism is just a cover for substantive policy agendas. For example, when Brennan called for more emphasis on state courts, that may have represented his sense that his preferred outcomes would not prevail at the national level. Federalism, properly understood, cannot guarantee to particular policy outcomes, but federalism, as a process, can lead to better outcomes. We should think of federalism as a regulatory or institutional design issue.
Schapiro's first topic is "different conceptions of federalism." When people talk about federalism, there are different conceptions. The Rehnquist Court saw federalism as involving two spheres of power. So there are cases limiting national power--Lopez and Morrison--which carve out enclaves of state power. The other side is the preemption and dormant commerce clause--where the court limits state power. These limits are especially clear in the area of foreign policy and international relations, where the Court says that states cannot act. This is "dual federalism." If you win at the national level, you want to say it is a national issue, and vice versa. What Schapiro thinks is a better conception of federalism is "polyphonic federalism," which is about the interaction of state and federal governments.
The second topic is problems or contingencies of dual federalism. There are various stories used to justify dual federalism--laboratories and competition. Another kind of argument is participatory governance--participation is better at the local level. Another argument is about tyranny that might result from centralization of all power at the national level. The problem with that story is that it tends to be quite contingent--it depends on circumstances. So we think about experiments that are not good. There are market based failures of states--externalities. There are problems with participation at the local level, because states are too big for participatory governance. And there can be local tyrannies--we can see civil rights legislation as responding to local tyranny. There is no real line between what is truly national and truly local.
His third topic is the systemic advantages of polyphonic federalism. Having a plurality of voices and regulatory dialog. We get systems that are more resilient and innovative. Local experiments bubble up, and then are adopted nationally. The national government acts as an "institutional review board" for local experiments. Thinking about federalism in this way can break a false dichotomy. Polyphonic federalism may be a second-best strategy. When you know the best answer, you go for that at the national level. But when you are not sure, experimentation may be the way to go.
Federalism needs to be thought of as an institutional design issue. How can we take advantage of the interaction.
Ernie Young (Duke) is the final speaker. If you have two levels, losers at one level can go to the other level. This works in both directions. For example, the losers at a state level can go to the national level, or vice versa. If mom says "no," go to dad.
The idea of loser federalism sound pejorative, but it is the crucial mechanism for holding a federal balance at stake. The state governments have not jealously protected their safeguards. The best protection for federalism may be the opponents of the policies that have prevailed at one level or the other. We count on losers to hold the structure in place.
There are some advantages on the merits to loser federalism. Decentralization may result in more winners if preferences are not distributed uniformly geographically. But it goes beyond that. We get the advantage of experimentation. There are other advantages. You are likely to be more persuasive in the long run, by demonstrating your competence or efficacy at the local level. For example, in England, the Tories cannot demonstrate their competence at the local level. In the United States, opposition parties can succeed at the state level.
What are the limits on the loser dynamic? On the one hand, there is the Supremacy Clause and on the other hand was the enumeration of powers (which no longer works). But it is hard for a bill to become a law at the national level. So there real limit on federal power is the "intertia limit."
Even if courts don't interpret the commerce clause, the courts are the gatekeepers for preemption and nonlegislative lawmaking at the federal level (which circumvent the intertia limits).
Will federalism work if the states do not have real popular support? Given that states are not founded on identities, they are likely to achieve identity on the basis of their policy choices. If you love the environment, go to California. If you love guns, go to Texas.
The states that oppose the federal government most vigorously are the largest and most powerful states. If we devolve power to the local level, it may elimiate the ability to contest federal power.
Has there been a Renquist revolution. Young doubts it. The only cases where the Supreme Court defined spheres of exclusive competence are those which keep states out of the foreign policy sphere. The most aggressive cases of the Renquist Court were the anti-commandeering cases, which did not carve out a sphere of state power. Young does not see any aggressive judicial enforcement of federalism. Dual federalism has been replaced by polyphonic federalism.
As a result, federalism no longer resides in the Constitution. The real limits are in the Constitution outside the Constitution--ordinary law. The much cheerier case for the states are statutory cases that create room for state experimentation. Most of limits on federal power are statutory and regulatory.
Graber suggests that Young defended what he (Graber) would call winner federalism--in which winners permit local variation.
Rob Mikos (Davis) asks about Raich, suggesting that the loss in the Supreme Court has not actually had a real effect on state medical marijuana policy. Barnett says this is a good question. He notes that the Raich case was still pending for quite some time after the Supreme Court decision. He believes that federal enforcement has started to enforce more vigorously, e.g., by using forfeiture statues against the landlords of medical cannabis distributors. So it may just be a delay in federal action. Barnett says that the term "communitarian federalism" is his term. After Kelo, there was property protective legislation at the state level, but this only happened because of the consciousness raised by the possibility of change at the federal constitutional level. The most important contribution that the Raich case made to the medical cannabis movement was raising consciousness. Because the Rehnquist Court created the possibility of a legal challenge, the politics changed. The existence of a judicial challenge can change the politics. Graber notes that one of the flaws of Gerald Rosenberg's hollow hope argument is that some of the advantages of lawsuits accrue even if you lose.
Tom Arthur of Emory asks about "global issues" such as global warming. Might there be a place for a stronger doctrine that carves out issues that can only be dealt with at the national (as opposed to the international) level. State-to-state variations may not be as great as nation-to-nation variations. Schapiro responds that there clearly is more intranational than international agreement on a variety of issues. What about global warming? The porosity of borders is likely to extend to the international sphere. Young doesn't see why states can't act on issues like global warming. California was the third largest consumer of oil in the world--the effects may be beyond borders, but policy may be applied in a scalable way. There is an assumption that policy must happen at the level of the problem, but that may not be right. Miller notes that one thing that makes people nervous is the accessibility of the international level, but that problem exists at the national level as well. It is very difficult to have access to Congress. There are diffused issues where public opinion is at odds with national policy. There are classic collective action problems. Federalism requires overcoming collective action problems at multiple levels. The playing fields are not even. They are systematically uneven. Barnett asks Miller whether there is a countervailing phenomenon that competing groups suffer from the same problem. Miller responds that she is largely agnostic about federalism, but she is not comfortable thinking about federalism in terms of political winners and losers. Prosecutors have a particular set of institutional priorities, which is a narrow way of addressing crime. When prosecutors argue at a national level, the policy frame is different. Narrow interests are advantaged at the national level. Graber argues that the more levels there are, the more the costs. Some issues may need more coordination than others. On some issues, national uniformity may be required to acheive policy goals.
And the session ended.