Reclaiming Federalism

Reclaiming Federalism

States’ rights have long seemed to go hand in hand with conservatism. But this need not be the case. What would a progressive federalism look like?

A sign at the Women's March on Washington, January 21, 2017 (Joe Solomon / Flickr)

The revival of states’ rights may be the most substantial accomplishment of the Rehnquist Court’s conservative majority. Cases concerning federalism do not regularly capture the newspaper headlines of hot-button constitutional disputes, but the jurisprudence of the Rehnquist majority has, in fact, been in retreat recently when it comes to affirmative action, abortion, school prayer, gay rights, and even the death penalty. In each area, conservative justices defected, creating de facto liberal majorities. When it comes to states’ rights, by contrast, the conservative majority has changed constitutional law dramatically. Not long ago, few propositions could be asserted more confidently in law-school classrooms than that states enjoy almost no constitutional protection from congressional power. Now, the talk concerns increasing restraints on federal power. What may be called “Rehnquist Federalism” has not yet made a revolution, and defections occur in federalism cases, too. But Rehnquist Federalism has changed the legal landscape by limiting congressional efforts to provide everything from effective remedies against discrimination to enforcement of federal statutory guarantees of overtime pay-all in the name of “state sovereignty” and despite the arguments of the four liberals on the Court.

Progressives used to know what to think about states’ rights. The idea was so thoroughly associated with opposition to the civil rights movement and resistance to the New Deal that it seemed to go hand in hand with conservatism. But since the “federalism” revival began in 1992, with a decision curtailing federal authority over hazardous-waste facilities, conservatives have gained control of Congress, regained control of the presidency, and retained their majority on the Supreme Court. With all three branches of the national government in conservative hands, progressives have begun to wonder whether federalism might be useful after all.

Salon magazine reports the emergence of why-go-to-Canada-when-you-have-federalism discussions within lefty circles. Progressive icons from U.S. representative Barney Frank to the San Francisco city government use state rights’ rhetoric to oppose a federal ban on gay marriage. Look for progressive policy making at the present moment and you are much more likely to find it in a city hall or a state capitol than in a federal agency or a Senate cloakroom. Is there something in a revival of federalism, then, that even a liberal could love? The short answer is, “The revival of federalism? Yes. Rehnquist Federalism? No.” Let me explain.

There is no such thing as “federalism.” There are only “federalisms,” fashioned at specific times and for specific reasons, each necessarily reflecting the particular political vision of its authors. Rehnquist Federalism is not the same as alternative federalisms that prevailed at other times in our history. Some of the framers of the Constitution, for example, favored limiting federal power in order to preserve liberty. They believed that the limited scope of Congress’s “enumerated” (that is, explicitly stated) powers made a separate bill of rights unnecessary. The conservative justices on the present Court construe Congress’s enumerated powers very narrowly, thus limiting the federal government’s ability to give life to those same liberties. These justices have done so (they say) to preserve states’ rights.

Limiting Federal Power

Before progressives address Rehnquist Federalism, they need to understand its implications. A key dimension of the new federalism involves limiting national power in order to expand state and local authority. This entails three distinct lines of doctrine:

  • The first concerns Congress’s enumerated powers. Article I of the Constitution grants Congress the power to regulate “Commerce . . . among the several States” and the Fourteenth Amendment empowers Congress to “enforce” the constitutional guarantee of equal protection of the laws and other basic rights against state infringement. By the end of the 1960s, the Supreme Court had construed these powers to give Congress a great deal of authority and, in doing so, confirmed the legal foundations of both the New Deal and the civil rights era. Now, thanks to the Rehnquist Court’s conservatives, Congress has much less power under the Commerce Clause to regulate matters that are not in some sense “economic” (even if they could be shown to have real impact on the national economy). And Congress has only limited power under Section 5 of the Fourteenth Amendment because the Court has taken a very narrow view of the legislature’s power to “enforce” constitutional guarantees such as the right to the equal protection of the laws. For example, while the Rehnquist Court continues to permit Congress to prohibit race and sex discrimination, it holds that Section 5 does not give Congress the same power to prohibit state discrimination based on disability or age.
  • The second line invokes vague principles of “federalism” in order to prohibit Congress from ordering states to implement federal regulatory programs. Congress may preempt state and local actions by passing contrary federal laws, but it may not require state and local governments to become regulators.
  • The third line protects “sovereign immunity,” the right of a government to refuse to respond to a suit brought by a private party. It traces back to the idea that the king can do no wrong. Not surprisingly, no reference to such an immunity is set forth in the Constitution. The Rehnquist Court, however, calls it a “postulate” of our federal system. The practical result is that even when states clearly violate federal statutes, the Court says that they cannot be made to pay damages for the harm they cause.

Congress still has the ability to regulate. Many matters are directly economic, after all, and even if Congress cannot commandeer states, it can (at least for now) get them to do what it wants in other ways. It can, for example, threaten to take away their federal grants. But the real-world consequences of Rehnquist Federalism should not be understated. Here are some examples:

  • It led to the invalidation of portions of the Violence Against Women Act, which enabled women alleging harms from gender-based violence to seek civil redress in federal court;
  • It struck down parts of the Brady Act, which required local law enforcement actors to perform background checks on gun purchasers;
  • It undermined numerous statutes authorizing damages actions against state governments, ranging from the Fair Labor Standards Act to the Americans With Disabilities Act.

Some Limits on States

In each of these instances, the Court’s solicitude for the “dignity” of states trumped congressional attempts to protect the dignity of individuals. But these cases tell only half the story-the half that concerns what the Court thinks Congress cannot do and what is reserved to the states. The other half concerns what the federal government should do, and what states and local governments should not. In other words, Rehnquist Federalism also limits state and local power in certain ways in order to expand national authority.

For example, the same Court that waxes eloquent about the need to restrain national power in order to protect state dignity routinely interprets ambiguous federal statutes broadly in order to preempt state regulation of private business. Even without a new federal statute mandating tort reform, the Court’s conservatives have engaged in a kind of ad hoc tort reform project of their own. It has displaced significant swaths of state consumer protection law, including some measures that would permit state residents to sue health maintenance organizations. Similarly, some of the Court’s leading federalism proponents turn out to be great fans of the so-called “Dormant Commerce Clause.” This is a judge-made doctrine that prohibits states and local governments from regulating in ways that might interfere with the free flow of commerce nationwide. For example, Justices Sandra Day O’Connor and Anthony Kennedy helped to forge majorities to invalidate local business regulations on the grounds that they are unconstitutionally protectionist or obstructive of national markets.

Finally, Rehnquist Federalism has expanded the Constitution’s “Takings Clause.” Historically, that clause required the government to compensate private owners when it seized their land, but not when it merely regulated how they could develop it. Over the last decade or so, the Court has treated more and more land-use regulations-such as restrictions on beachfront development or requirements that developers take steps to limit the costs imposed on the public by new construction-as if they were outright land grabs. As a result, the government increasingly risks multimillion-dollar claims by developers. By changing constitutional doctrine in this way, the Court departs from its view of states and localities as autonomous sovereigns entitled to respect. Instead, it intimates at times that they are nothing more than petty extortionists seeking to rob private businesses.

Viewed as a whole, then, the current “federalism” revival does not simply protect states’ rights. It reallocates powers between the federal government and state and local ones, simultaneously limiting and extending the scope of each. And it does so in a politically ingenious way. Rehnquist Federalism synthesizes the social-conservative, small-government, and pro-business philosophies of the Republican Party. When it comes to nonmarket social issues, the Court carves out a domain of state and local power that is immune to federal legislative interference because of the “economic” requirement. This shift empowers localities to implement extreme social policies-whether concerning abortion or gay rights-favored on the right. With respect to market matters, by contrast, the Court consistently decides against “overreaching” by states and localities and legitimates business-backed federal efforts to curb state and local regulations. So, the Court finds that federal statutes trump state consumer protection laws or that local government land-use measures are unconstitutional. Even the state sovereign immunity and anti-commandeering cases seem to comport with the Republican Party platform. They make it harder to force states to pay for the harms they cause and more difficult for the federal government to implement national programs that require state assistance. In doing so, they reflect contemporary conservative interests in preserving the state treasury and shrinking the size of government.

Which Federalism?

The overlap between the Court’s decisions and conservative ideology is not perfect, and one cannot prove that it is intentional. The notion that there might be some federalism-based limits on national power, after all, is not senseless. But there is precious little in the Constitution’s text or the history of its adoption that compels the particular conservative allocation of national and local powers favored by the Rehnquist Court.

That Rehnquist Federalism promotes a substantively conservative political philosophy should not be surprising. Nor should it be surprising that Rehnquist Federalism limits state power even as it protects it. No one who believes in states’ rights believes in unlimited states’ rights. Federalism presumes that states exist within a larger nation. Each form of “federalism,” therefore, rests on a view of what it is that states should and should not be doing. Some constitutional lawyers say that the allocation between the federal and state levels can be made “neutrally.” That is, one can try to discern what the Framers would have wanted or one can make technical judgments about the likely geographic impacts of a government’s decision. But neither of these approaches is helpful. What the Framers wanted is arguable, and it is difficult to determine the “local” or “national” effects of state policies. When the highest court in Massachusetts ruled on same-sex marriage, its decision applied only to the state’s residents. Yet some analysts think that decision also helped to decide the national presidential election. Thus, cultural, ideological, and social forces that are contemporary and political, rather than timeless or technical, are bound to shape judgments about whether an issue is “national” or “local.” In other words, what is “truly local” or “truly national”-as the Rehnquist Court has famously described the two domains-is truly political.

To say that Rehnquist Federalism has a strong conservative flavor is not to say that it lacks conceptual integrity as a form of federalism. Roughly speaking, it allocates social regulation to the states and market regulation to the federal government. The Rehnquist Court’s conservative majority seems committed to maintaining this boundary even though it may limit the ability of Congress to advance conservative policies in particular cases. Take same-sex marriage. Even though it is an A-list issue for social conservatives, the Court expressly identified marriage (in a recent Commerce Clause case) as a matter of “truly local” concern and not at all “economic.” There is little reason to think the Court will back off on this, even if confronted by a federal statute banning same-sex marriage. The Rehnquist Court’s federalism, then, is conservative without always generating a conservative outcome.

Federalism and Conservative Interests

Now that we have a better fix on what the new federalism is about, we can return to our initial question of how progressives should think about it. Clearly, there is a lot not to like, beginning with an allocation of national and local powers that promotes the interests of contemporary conservatism so well. In addition, Rehnquist Federalism seems to assume a zero-sum battle for power between national and local governments that is not justified. National legislation can enhance the ability of state and local governments to cope with very local problems. That’s why some local officials filed briefs opposing the invalidation (on “federalism” grounds) of both the Brady Act and the Violence Against Women Act referred to earlier.

At the same time, progressives know well the virtues of local power and decentralization. Just ask Eliot Spitzer, New York State’s activist attorney general, if he would favor congressional action to preempt state business regulation. Thus, the standard progressive approach to federalism-that national governmental institutions must be free to act as they wish and when they wish on any matter of their choosing-seems problematic. The Constitution separates powers not only horizontally among the three branches of the federal government, but also vertically between national and state and local institutions. It’s time for a progressive vision that imagines all levels to be important actors and not just the national government.

Of course, securing that vision in constitutional terms is not easy. There are problems with judges’ drawing lines between local and national authority. But there are also problems with judges’ leaving it to Congress to decide the limits of national authority. With no constitutional limits on congressional power, a majority party can act without constraint. For example, the conventional progressive view of the power of Congress under the Constitution’s Commerce Clause-that it covers almost any matter one can think of-would clearly authorize federal legislation banning same-sex marriage or state death-with-dignity laws. So there is, ironically, something attractive for progressives about the Rehnquist Court’s defense of judicially enforceable limits on national power. There is also something admirable about its apparent willingness to accept some outcomes that are hardly conservative. This Court is not prone to the case-by-case, nuanced assessment of what makes “good” policy that progressives often favor but that makes them vulnerable to the criticisms that they have positions and no principles. Perhaps progressives should bite some bullets of their own.

For a Progressive Federalism

What would a progressive federalism look like? It might well be a mirror image of Rehnquist Federalism. It would give states and local governments much greater room to regulate the private market. This would check national and multinational business influence as Louis Brandeis and earlier progressives once imagined. It would also give the national government much more power to regulate nonmarket social relations. This would give Congress the power to protect basic Fourteenth Amendment rights.

To expand the ability of states and local governments to regulate private business, progressive federalism would permit federal statutes to trump state regulations only when they were in clear conflict. In other words, states would get the benefit of the doubt in this area. A progressive federalism would also interpret the Takings Clause to give more deference to local efforts to make developers assume the costs of their development. And rather than characterizing state and local regulations as protectionist or as obstructive of the national market, as the Court often does in its Dormant Commerce Clause decisions, progressive federalism would permit sensible attempts by state and local governments to protect their communities from the harsh and dislocating effects of larger economic forces.

But progressive federalism would do more than free states from the limits imposed by Rehnquist Federalism. It would promote a different view of Congress’s enumerated powers. It would reinforce Congress’s Fourteenth Amendment power to “enforce” basic constitutional rights and thereby protect the prerogatives of national citizenship from threats posed by local prejudices. Among the highest priorities of progressive federalism would be to reverse the Rehnquist Court’s unwarranted curtailing of this vital power.

Progressive federalism would not, however, view congressional power as unlimited. Consider Congress’s power to grant copyrights. The Constitution authorizes Congress to give “exclusive Right[s]” to “authors” for “limited Times” in order to “promote the Progress of Science and useful Arts.” But that grant of power was not intended to turn Congress into a lackey of the national entertainment industry. The Rehnquist Court recently upheld a federal statute-thanks to aggressive industry lobbying-that retroactively extends federal copyrights in creative works for life plus seventy years. This was a legislative giveaway to the Walt Disney Company and other large, national companies, and it hardly promotes the arts. Nor does it comply with the requirement that creative works can be locked up only for a “limited time.” A narrower view of Congress’s copyright power, therefore, might be quite progressive. It would respond to the concern that the national legislature is unusually likely to be captured by the national entertainment industry.

A progressive federalism might also embrace the Rehnquist Court’s limited view of Congress’s Commerce Clause power. Congress would retain its ability to regulate economic activity. It would not, however, possess a general power to regulate any matter chosen by a majority of its members. This could provide an important check against the efforts of a congressional majority to impose red-state social conservatism nationwide.

Such a limit on the Commerce Clause power, moreover, would not prevent Congress from enforcing an inclusive vision of national citizenship. Congress could still act forcefully against discrimination by invoking its Fourteenth Amendment authority to protect rights to equality.

Some legal scholars would say, no doubt, that progressive federalism is “political” rather than constitutional. But it is no more political than Rehnquist Federalism, and it is just as defensible in legal terms. Progressive federalism would not guarantee a liberal outcome in every case any more than Rehnquist Federalism guarantees a conservative one. For instance, progressive federalism might permit some local anti-affirmative-action measures that would otherwise be deemed inconsistent with federal statutory requirements. And a requirement that Commerce Clause legislation target economic activity could jeopardize some applications of environmental regulations, notably to local wetlands. But progressive federalism would promote national/local relations consistent with a broader liberal political vision. That vision has a constitutional pedigree that is at least as legitimate as the conservative one it would displace. Progressive federalism, then, would have just as much-or as little-integrity as today’s conservative federalism.

Progressives for too long have been strikingly unimaginative when it comes to federalism. They speak only in a national key. But it is clear that their faith in unlimited national authority was the contingent product of liberal control of national institutions. Circumstances have changed. We should now look at the Constitution’s federalism with fresh eyes. Doing so would cast some much needed doubt on the stereotype that progressives love big government. If progressive federalism results in judicial decisions that limit national power too much, there would still be recourse to constitutional amendments. Fighting for an amendment to authorize Congress to protect the environment might, for example, be quite good for a broader liberal agenda.

So, the next time you read a progressive trashing of the Rehnquist Court, resist the impulse to applaud the national government as our sole hope and savior. Federalism is what we make of it. Rehnquist and his conservative colleagues have been making the most of it for more than a decade. It’s time for progressives to do the same.


David J. Barron is a professor at Harvard Law School. He has written widely on issues concerning federalism and local power.


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