All Commentary
Friday, July 21, 2017

Don’t Be a Fair Weather Federalist

There's a kind of insurance against potential depredations offered by constitutional federalism.

Newly appointed Yale Law School Dean Heather Gerken, who is also a leading federalism scholar, has an interesting interview on the future of progressive federalism in Commonwealth Magazine. The whole thing is well-worth reading for anyone interested in federalism, the development of the political left under Trump, or both topics.

Fair Weather Federalism

Gerken has long argued that her fellow political liberals should take a more favorable view of federalism. As the Commonwealth interviewer notes, the rise of Donald Trump has led many on the left to move towards her position. Prominent left of center legal scholar Jeffrey Rosen is just one of a number of examples.

Gerken is happy to have the additional support, but argues that commitment to federalism should be a long-term agenda, not just one adopted for immediate political advantage, and then quickly dropped when the electoral wind starts to blow the other way:

It’s true that Republicans have often been more clearly associated with federalism. But both sides are fair-weather federalists. Both sides will, depending on the politics of the moment, prefer state or national power, depending on where they’re in control. People ought to have a more enduring commitment to federalism for democratic reasons – that’s the aim of my research agenda….

I’m delighted to have people come late to the party. And I hope to convince them that this shouldn’t be a short-term commitment because they don’t like the politics of the moment. A commitment to federalism should really be a long-term commitment based on the importance of democratic design.

Fair weather federalism is indeed a common problem on both left and right, and Gerken’s critique of it is well-taken. She is also right to argue that federalism can help mitigate the dangers of a situation where there is severe ideological and partisan polarization. I have advanced some related arguments myself.

Gerken makes many other good points in the interview, as well, such as pointing out ways in which decentralized federalism can benefit minority groups (a major theme of her earlier work). I also agree with much of what she says about and previously about how the left can use federalism to oppose Trump on issues such as immigration.

On the Other Hand

But there is also a problematic tension in her approach. On the one hand, she rejects “a federalism where one side or the other gets a trump card” and prefers that “neither side can force its agenda on the other.” But, despite some modest shifts in recent work, she continues to oppose most judicial enforcement of constitutional limits on the scope of federal power, a view that she seems to reiterate in this interview.

Both the left and right would do well to embrace the “insurance” offered by constitutional federalism against the potential depredations of the other.

The result of that position, however, is that the federal government would indeed have a “trump card” – even a Donald Trump card! Absent constitutional constraints, it will indeed be able to “force its agenda” on unwilling states and localities in most cases where it makes a strong effort to do so.

The Commonwealth article notes Gerken’s leadership of a clinic at Yale that recently helped win an important case invalidating Trump’s executive order targeting sanctuary cities. But that success depended on precisely the sort of judicially enforceable constitutional limits on federal power that Gerken usually opposes: In this case, constraints on federal “commandeering” of subnational governments and limits on conditions attached to federal grants.

Gerken and other advocates of progressive federalism need not necessarily endorse all the same judicially enforceable limits on federal power advocated by conservatives or libertarians. But they would do well to reject across-the-board opposition to such constraints.

In an environment where national politics is deeply polarized and neither side can expect to achieve decisive dominance anytime soon, both left and right would do well to embrace the “insurance” offered by constitutional federalism against the potential depredations of the other.

Left of center federalism experts should more seriously consider what types of “federalism insurance” are desirable and why. The answers they come up with may well be different from mine or those of other libertarians. But we may also find that we have more in common than previously thought.

Greater Local Autonomy

Decentralization of many policy issues to the local level gives foot voters a much wider range of options.

Progressive federalists could also strengthen their argument by recognizing that federalism empowers people by providing opportunities to “vote with your feet,” as well as at the ballot box. As policy experts across the political spectrum are beginning to recognize, enhance opportunities for foot voting, especially for the poor.

Foot voting is a natural complement to Gerken’s famous argument that we should push federalism “all the way down” – granting greater autonomy to local governments, as well as states. Decentralization of many policy issues to the local level gives foot voters a much wider range of options, while also reducing moving costs.

Despite my reservations on some key points, Gerken’s contribution to the public debate over federalism is an extremely valuable one. Hopefully, she will continue it in her new role as dean at Yale.

I also urge interested readers to check out her excellent recent Time magazine article on why law schools have largely avoided the attacks on free speech and disruption of speakers that have become all too common in some other university settings.

Reprinted from The Washington Post.

  • ILYA SOMIN is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.