Conservatives and liberals have made common cause of a longtime conservative bulwark: states’ rights, the “laboratories of democracy” that can serve as tempering forces and alternate models of governance.
“New York, California and Washington Say They’ll Stick to Paris Deal as Trump Backs Out” —CNBC, June 1, 2017
“ ’Sanctuary City’ Mayors Vow to Defy Trump’s Immigration Order” —The New York Times, January 25, 2017
“Hawaii Challenges Trump Stance on Supreme Court Travel Ban Ruling” —Politico, June 29, 2017
Everyone has read these headlines. But if I say that they all are based on the concept of federalism embodied in the US Constitution, many people react with MEGO syndrome (My Eyes Glaze Over). Yet federalism is one of the most important structural safeguards of liberty woven into the Constitution by the Framers; their geometric minds envisioned it as a means of achieving balance and order. In the nation’s infancy, Alexander Hamilton in Federalist 17 speaks of the “rivalship of powers” between the central government and the states, echoing the famed phrase in Federalist 10 on the balance of powers between the branches, “ambition countering ambition.” Federalism emphasizes that the defined limitations of central government have real meaning, and that states retain autonomy in a broad range of policy areas—serving, as Justice Louis Brandeis put it, as the “laboratories of democracy.” But the party in power in Washington, at least since the New Deal, always has sought to expand its reach in dominating the states.
These distributions of power show up in the Constitution itself: they include the tautological phrase in the Tenth Amendment stating that all powers not delegated to the federal government are retained by the states. That phrase is modified by the Commerce Clause, which gives the federal government primary authority in those matters affecting interstate commerce. And it has given rise to a broad category of case law on preemption, in which only the federal government may act in certain areas (war powers, international relations) or, in cases where the federal government and states both act, in which conflicting approaches are resolved in favor of the federal government.
For the last generation, federalism was the rallying cry of conservatives. The powerful policy organization that supplied its intellectual firepower on judicial and constitutional theory named itself the Federalist Society. Yet today, Americans are seeing a progressive federalism, as liberals turn their attention to addressing policy at the state level. Trading places with the conservatives, liberals now are in a position they never thought they’d be in, and they have discovered federalism as a tempering force: a repository for more power in the states, a perch to create alternate models of governance, and even a bunker to challenge federal policies through litigation brought by state attorneys general, who often build cases around state policy in conflict with federal law.
The same-sex marriage movement is a useful example for those seeking to examine how federalism can shape policy nationwide. Advocacy groups in that effort adopted a multipronged strategy. While some litigation entailed high-stakes battles in federal courts, more often the battle was state by state, with efforts made to change legislation, amend state constitutions, or to find a right to marriage in existing state constitutions—as the Massachusetts Supreme Court did through the landmark Goodridge case, in a decision written by then–Chief Justice Margaret Marshall. By the time the US Supreme Court took up same-sex marriage in Obergefell, the climate of public opinion around the nation was far more favorable to a decision that only a few years before might have seemed radical.
In the field of climate change, too, states can push policy. When California sets strict emission standards, Detroit takes notice if it wants to sell cars there. So do food vendors when it comes to animal welfare and product labeling.
As Yale Law School Dean Heather Gerken noted in a talk at the Aspen Ideas Festival this summer, federalism at its best protects “minorities and dissenters”: their voices, when organized, have a bigger megaphone in the smaller state arena than in the larger, dilute federal one.
Yet during the past eight years, with the conviction that their leaders never would be in the party out of power, progressives moved to strip states of their coordinate power with the federal government. Many viewed “states’ rights” as the province of Southern racists seeking to avoid civil-rights laws. When the Obama administration sued the state in Arizona v. United States, Justice Anthony Kennedy wrote that enforcement of immigration law at the US southern border was a matter of foreign policy, properly administered only by federal authorities. That worked well for states like California and New Mexico, whose state policies jibed with the Democratic administration’s policy of a soft approach to illegal entry. But when the Trump administration announced an intent to adopt a harsher tack, states began to realize they were all now stuck with a rule that allows for no state coordination or for more compassionate approaches by state authorities.
More heartening is the approach taken by the Supreme Court majority in the lesser-noted part of the decision in the Affordable Care Act case. While liberals marveled at the opinion by Justice John Roberts on the individual mandate, the other half of the opinion had to do with sanctions against states that chose not to expand Medicaid. The ACA envisioned that the sanction against states that did not expand would be to withhold part of the federal share of Medicaid—up to 100 percent. This is an example of what is called “coercive federalism”—that is, the federal government’s effort to exact uniform policy from the states individually when a separate constitutional or legislative mandate would preclude directly requiring it. In a surprise, several of the liberal justices joined the portion of the opinion stating that the sanction went too far and intruded on state autonomy—since Medicaid spending is in many states not only the lion’s share of the health budget but of the state budget as a whole. The sanction, would, for many states, blow a hole through the state budget, and in doing so, intrude too much on the “retained powers”—autonomy—that the Tenth Amendment refers to.
In an effort to explore the wide range of perspectives regarding federalism, in November scholars from the Berkeley School of Law and the Pepperdine University School of Law will meet at Berkeley for a symposium on federalism convened in cooperation with the Aspen Institute’s Justice and Society Program. A meeting the following spring at Pepperdine will continue the conversation. Hopefully, fresh perspectives on federalism will emerge from these two symposia.
Meryl Chertoff is the executive director of the Institute’s Justice and Society Program.