Federalism as the New Nationalism: An Overview
Federalism has had a resurgence of late, with symposia organized,1 stories written,2 and new scholarly paths charted. Now is an appropriate moment to assess where the new “new federalism”3 is heading. This Feature thus brings together five scholars who have made unique contributions to the field in order to offer a snapshot of the current debate.
Taken together, these essays suggest that federalism is the new nationalism. Shorn of the traditional trappings of sovereignty and separate spheres, detached from the notion that state autonomy matters above all else, attentive to the rise of national power and the importance of national politics, this work offers a descriptive and normative account that is deeply nationalist in character.
Nationalists, of course, have long been skeptical of conventional accounts of federalism. But, as the work here shows, those accounts no longer describe vast swaths of “Our Federalism.” It’s time for the nationalists, who have often rebuked federalism’s proponents for being behind the times, to catch up to today’s realities. That’s especially true now that scholars have developed new justifications for devolution that pivot off of nationalist concerns. While the contributors to this Feature have different views, each believes that a committed nationalist ought to believe in federalism, just as a committed proponent of federalism ought to care about the states’ evolving role in our national system.
The work of the contributors offers a lens for identifying the basic tenets of what I call the “nationalist school of federalism.” In this introduction, I’ve organized my observations around the five features needed for any account of federalism: (1) a tally of the ends served by devolution, (2) an inventory of the governance sites that matter, (3) an account of what gets the system up and running, (4) a description of how the national and local interact, and (5) “rules of engagement”4 to guide those interactions. In each instance, the nationalist school of federalism departs from state-centered accounts of federalism and pushes toward a nationalist vision of devolution’s virtues. While I focus on the work done by the contributors to this Feature, I also acknowledge the scholars who have inspired or helped develop this new account, even if they may not count themselves as members of the nationalist school.5
Any account of federalism must begin with the values it serves. The question at the core of this Feature is whether federalism can serve nationalist ends. Alison LaCroix poses the question most provocatively: If we accept Holmes’s expansive vision of national power, is it nonetheless “possible to conceive of the states as having significance?”6
Supporters of conventional federalism have a ready list of reasons why states matter. Federalism promotes choice, fosters competition, facilitates participation, enables experimentation, and wards off a national Leviathan. The conventional account insists that sovereign or at least autonomous states—states with “meaningful things to do,” to use Ernie Young’s pragmatic definition7—are necessary to achieve these important goals.
The nationalist school has put a different set of reasons for valuing states on the board. Most take the perspective of the detached social engineer, focusing on the institutional features needed for a vast and diverse nation to thrive. But some take the vantage point of a self-interested national actor. What unites these new accounts of federalism’s ends is that they are also nationalist ends.8
You might think that a “nationalist school of federalism” is a contradiction in terms. It isn’t. In order to see why, a bit of a definitional work is in order.
Scholars often write as if the key difference between the two camps is that nationalists favor lodging most decisions with the federal government, whereas federalism’s supporters favor devolution to the states. While that simple definition may be descriptively accurate, it elides an important distinction between means and ends. Both devolution and centralization are means to an end. They are, in fact, means to the same end: a well-functioning democracy.9 That’s why most of the arguments conventionally offered in federalism’s favor are ones a nationalist could accept.
For this reason, it can’t be that the federalism/nationalism divide has only to do with our choice of means. There are many sensible justifications for moving decisions up or down the governance hierarchy. If we were just quibbling about means, views on devolution ought to be highly contextual and fall along a broad continuum. These questions could only be worked out on a case-by-case basis, and disagreements would concern matters of degree. What we see instead are clearly defined intellectual camps with firm commitments to a single institutional design strategy across policymaking spheres. Federalism types favor state power in most situations;10 the nationalists’ one-way ratchet pivots the other direction.
A cynic might think that camps exist because we’ve let means bleed into ends. On this view, state autonomy and national power are mistakenly treated as if they were ends, not means.11 Scholars have so vigorously canvassed the democratic ends served by devolution or centralization that they sometimes confuse those accounts with an exhaustive description of what a vibrant democracy requires.12
While it’s possible that both camps have allowed means to bleed into ends, a more generous take suggests that what really propels this battle are two different visions of democracy. One emphasizes state power, state politics, and state polities; the other national power, national politics, and a national polity.
If we characterize the two camps in this fashion, it becomes clear that federalism can serve the ends that the nationalists have long associated with their vision of American democracy. It is possible to have a “nationalist account of federalism,”13 an “intrastatutory federalism,”14 or for “federalism’s afterlife [to be] a form of nationalism.”15 It is possible to imagine federalism integrating rather than dividing the national polity.16 Given the importance of “build[ing] a union” to the Founding generation, it is even possible that “federalism . . . has always been the United States’ distinctive species of nationalism.”17 The work of the scholars contributing to this Feature confirms that federalism can be a tool for improving national politics, strengthening a national polity, bettering national policymaking, entrenching national norms, consolidating national policies, and increasing national power. State power, then, is a means to achieving a well-functioning national democracy.
Note what else follows from treating federalism as a means rather than an end. There is little point to valorizing categories like “state” and “national.” For some of us, that position doesn’t just signal skepticism about the stability or coherence of these categories.18 It also heralds an openness to national involvement in areas of traditional state concern and the use of local sites to build a national polity or forge national policy. Even those who embrace a more state-centered view—Abbe Gluck being the notable example in this collection19—have done a great deal of descriptive work on the way that federalism, in fact, serves nationalist ends.
At this point, federalism’s traditional proponents might think it’s time to get off this train. They shouldn’t. A nationalist account of federalism may not resemble the conventional one, with its emphasis on autonomy and independent state policymaking. But this work shows why state power, in all of its forms, matters to a thriving national democracy. Too often federalism scholars have treated sovereignty and autonomy as if they were the only forms of state power,20 as if the states and national government were in a zero-sum policymaking game.21 They’ve neglected the different but equally important forms of state power that are at the heart of the nationalist school’s work on federalism: The power states enjoy as national government’s agents.22 The power states exercise in driving national policy and debates.23 The power states wield in implementing and interpreting federal law.24 Abbe Gluck even argues that states are exercising their “sovereign powers” in cooperative federal regimes, “albeit in ways different from those contemplated by the traditional account.”25
While these forms of state power may not fit the conventional account, they should still matter to those who care about state clout. That’s because these avenues of state influence may be the most important forms of state power going forward.26 They may even become the only game in town.27
So how does federalism ensure our national democracy thrives? What nationalist ends have scholars identified? The scholars contributing to this Feature, standing alone, have written about at least four: improving national politics, knitting together the national polity, improving national policymaking, and entrenching national power and national policies.
Much of the work of the nationalist school has focused on what one might call the “discursive benefits of structure.” Constitutional theory has divvied up the tasks of American constitutionalism into doctrinal silos.28Those interested in governance—allocating power among institutions so that policymaking flourishes and a Leviathan does not emerge—have focused on constitutional structure generally and federalism in particular. Those interested in democratic debate, meanwhile, have focused on the rights side of the Constitution, particularly the First Amendment.
One of the nationalist school’s distinctive contributions is showing how structural arrangements help tee up national debates, accommodate political competition, and work through normative conflict. Rather than foreground the distribution of power, as does most federalism scholarship, this work considers how national debates and national identity are forged against the background of these structural arrangements. Federalism, in Cristina Rodríguez’s words, “amplifies the polity’s capacity for politics,”29 and state and local structures can serve as sites of contestation and pluralist competition.30 The work is more interpretive than normative; it does not insist that these institutional arrangements are ideal in theory. Instead, like much legal scholarship, it sets out to identify the underappreciated normative benefits associated with real-world phenomena so we can correctly assess their worth.
I have argued that structural arrangements serve the same discursive aims as the right to free speech.31 States and localities facilitate “dissenting by deciding,”32 giving political outliers an opportunity to force engagement, set the national agenda, dissent from within rather than complain from without, and offer a real-life instantiation of their views. On this view, federalism serves decidedly nationalist ends, providing “the democratic churn necessary for an ossified national system to move forward.”33
Rodríguez has similarly examined how the allocation of power shapes debates over core issues of national identity. Beginning with her early work on “immigration federalism”34 and moving on to federalism’s discursive role writ large,35 she argues that we often can’t have a “national conversation” on a divisive subject until we’ve had a variety of local ones.36 On her view, decentralization doesn’t just provide manageable sites for working out conflict, but generates a more variegated set of procedures and policies than would be possible at the national level.37 Federalism also provides a much-needed outlet for contestation when issues don’t lend themselves to national resolution.38 Note that Rodríguez’s account of state variation is less about state laboratories generating different policy “solutions” and more about maintaining varied processes for working out conflict or dealing with an unraveling consensus.
While Rodríguez’s and my work centers on political outliers and networked interest groups,39 Bulman-Pozen’s research has called attention to federalism’s partisan dimensions. Reorienting the debate over the relationship between the political parties and federalism, which has been dominated by the important work of Larry Kramer,40 she argues that federalism provides a “durable and robust scaffolding” for partisan competition and shows the ways in which national parties run their fights through state sites.41 On her view, states serve as a crucial “staging ground” for national debates.42
While Gluck and LaCroix haven’t endorsed these visions of federalism, one can nonetheless see deep continuities between their work and our interpretive claims. Gluck, for instance, shows how cooperative federalism renders federal entry into new policymaking arenas “more politically palatable.”43 She also argues that one of federalism’s cherished ends—state experimentation—is better served when states act as part of national schemes.44 LaCroix’s rich historical account makes clear that the ill-defined notion of sovereignty itself has provided a site of contestation between proponents of state and federal power.45
The work featured here shows that federalism serves another nationalist aim: it knits together the national polity. Nationalists have long worried that decentralization exercises a centrifugal force on the polity, scattering us into isolated enclaves. But contributors to this Feature have shown that decentralization can serve rather than undermine the project of integration.46
Bulman-Pozen’s work, for instance, has focused on the partisan dimensions of national identity. She argues that partisanship supplies the much-needed explanation for why people affiliate both with their state and with the federal government.47 Because states serve as sites for national politicking, they create sources of identification even for those whose preferred party is out of power in Washington.48 Federalism, then, doesn’t just take the sting out of losing, but helps bind winners and losers to national politics. Moreover, the existence of fifty states generates multiple opportunities for state-based affiliation. States, argues Bulman-Pozen, “generate a federalist variant of surrogate representation” by allowing “individuals across the country [to] affiliate with states they do not inhabit” based on their partisan affiliation.49
Bulman-Pozen’s contribution to this Feature makes an even stronger claim. She criticizes process federalism scholars for arguing that federal-state “integration . . . yields separation”—that “state actors use their connections to federal politicians and administrators to safeguard state autonomy and to advance particularistic state interests.”50 Instead, she insists, “integration yields integration,” so that with respect to both “governance and interests,” states frequently serve as national actors.51
My work has emphasized the ways in which decentralization integrates racial minorities and dissenters into the national polity.52 Structure thus furthers the same aims as the First and Fourteenth Amendments. Because federalism and localism allow national minorities to rule as local majorities, decentralization “turns the tables,” allowing the usual losers to win and the usual winners to lose.53 Decentralization, then, gives democracy’s outliers the same opportunities that members of the majority routinely enjoy.54 It gives dissenters the ability to speak truth with power, not just to it.55 It gives racial minorities the chance to protect themselves from discrimination rather than look to the courts or the federal government for solace.56 Local power thus exercises a gravitational pull on racial minorities and dissenters, pulling them into the project of governance and giving them a stake in its success.57
Rodríguez has argued that accommodation is a necessary part of the project of integration, and here too federalism plays a crucial role. Rodríguez’s early work on “immigration federalism”shows the important part states and localities play in integrating immigrants into the polity, thereby putting the lie to abstract claims about federal exclusivity in this domain.58 These sites not only offer traditional forms of accommodation, but also provide the means for challenging federal enforcement priorities and sparking the debate necessary to consolidate immigrants’ status. They are, in short, “mechanisms for shaping national identity.”59 Rodríguez has begun to extend her analysis to other divisive issues—gay rights, drug legalization, gun regulation—which are being worked out at the state and local level.60 “Decentralization,” she writes, “can promote national integration and national problem solving in a world of deep demographic and ideological diversity.”61 Political pluralism, in Rodríguez’s view, is best accommodated through policymaking pluralism,62 and federalism is a tool for the management of cultural change writ large.63
What makes Rodríguez’s work so important is that it is not premised on a conventional accommodationist account, which emphasizes Tiboutian sorting, preference satisfaction, and enclave solutions. For Rodríguez, the key to federalism isn’t just that varied policies accommodate varied preferences. Instead, decentralized policymaking shapes our preferences and teaches us the skills required for integration as we continually revisit the problem of accommodation in local and state nodes.64
While LaCroix’s work is largely historical, it reveals interesting continuities with the interpretive work done by other members of the nationalist school, particularly Rodríguez’s. LaCroix portrays the lower federal courts as the key actors in creating and enacting federalism during earlier periods in our history.65 Courts did so not as neutral referees, but as decidedly federal actors using their jurisdiction to promote national integration and connect the periphery to the center.66
Gluck examines the question of integration through an institutional and interpretive lens. She argues that state implementation of federal law can make national lawmaking possible because it eases federal entry into traditional state domains while embedding state values in the federal scheme.67 State policymaking thus takes a national turn, and national policies assume a local guise. So, too, the roles state and federal actors play in construing each other’s law knits these institutions together and produces a blended interpretive regime.68
Note that when members of the nationalist school write about federalism’s role in promoting integration, they do not equate national integration with national uniformity (something nationalists often laud and federalism’s proponents often fear). To be sure, several of us have written about political actors using state and local sites to pursue decidedly national agendas. I’ve written about the ways that dissenters and interest groups use their policymaking power at the state and local level to build a national movement, force issues on the national agenda, and tee up national debates, all with an eye to forging a national norm.69 Bulman-Pozen’s work on partisan federalism similarly focuses on state actors using local sites to pursue national agendas.70 But we all agree that local variation is perfectly consistent with a nationalist scheme.71
Rodríguez and Gluck are the most explicit on this front. Rodríguez acknowledges that federalism can “help produce values or policy consensus” for some issues.72 But she also questions the utility, the desirability, even the possibility of a national consensus for others.73 Rodríguez suggests instead that federalism’s utility lies in its ability to enable sustained friction over the long run.74 On this view, “integration can emerge through the achievement of an equilibrium that contains within it the possibility of ongoing debate,”75 with federalism “keep[ing] open the capacity for change, so that law and policy can reflect and channel the variable rather than linear nature of public opinion.”76 Similarly, while Gluck recognizes that states can be drivers of legal uniformity,77 she does not take federalism’s end to be a uniform national solution. Instead, emphasizing the persistence of traditional forms of federalism, she “takes continuing variety and state power as an end worth pursuing and aims to persuade states-rights theorists that nationalism is one important means to it.”78 These observations resonate deeply with LaCroix’s work, which shows that contestation over federalism’s meaning has been a recurring feature of American legal and political thought since before the Founding.79
Conventional federalism has long posited a role for the states in improving national policymaking.80 But the nationalist school has moved well past the anodyne idea that states serve as “laborator[ies]” of democracy.81 Some of us have challenged the notion itself,82 some have recharacterized it,83 and many have offered a more textured and sophisticated account of states’ policymaking roles.
Much of this work has been done by scholars not featured here, many of whom might resist being classified as “nationalists.” Robert Schapiro’s work on “polyphonic federalism” was one of the earliest and most important contributions.84 But scholars inside and outside of constitutional law have convincingly established the policymaking benefits associated with redundancy, administrative overlap, joint regulation, and mutual dependence.85 The environmental federalists, in particular, have been key movers on this front, offering a comprehensive account of the ways in which these unconventional forms of federalism improve policy outcomes.86
Contributors to this Feature have taken these ideas in a different direction, emphasizing the role that contestation plays in a healthy policymaking process.87 Bulman-Pozen and I have described the “uncooperative” dimensions of cooperative federalism.88 Decentralization puts skeptics inside the Fourth Branch, reproducing the dynamics long lauded by conventional federalism within the federal administrative state.89 Because states and localities play a crucial role in administering federal law, federalism turns dissenters into decisionmakers, not just lobbyists or supplicants. They can help set policy rather than merely complain about it.90 Better yet, dissenters’ arguments will be based on detailed knowledge of on-the-ground facts and will be cast in the vernacular of shared expertise and experience.91 Administrative law scholars have thought long and hard about how to ensure an adequate level of contestation inside the Fourth Branch.92 “Uncooperative federalism” isn’t just a theoretical solution to this problem; it’s a solution that’s working in practice. And it’s one that serves the distinctively nationalist end of improving federal policymaking.
Bulman-Pozen has offered a promising new take on these issues. She argues that federalism serves another nationalist goal: safeguarding the separation of powers.93 On her view, states in cooperative federal regimes help check executive power. In the federal-state tussles that inevitably emerge from joint regulation, states cast themselves as Congress’s “champions”94 and focus attention on congressional aims. They also enlist the courts as allies against an overweening executive branch.95 What makes this work especially significant is that it doesn’t insist, as does so much other work, that success depends on Congress pulling up its socks and enforcing its own prerogatives. Instead, Bulman-Pozen suggests that federalism converts what some see as one of Congress’s worst habits—its propensity to delegate broad swaths of authority to other actors—into a constitutional virtue.96
Consistent with her expertise in the field of legislation, Gluck views these design choices through the eyes of Congress rather than those of a hypothetical social engineer. Because the states’ role in national policymaking is a product of a congressional intent, even “nationally oriented motivations,” like the entrenchment of federal statutes, “have federalism within them.”97 Cooperative federal regimes do a better job of catalyzing state experimentation than do the exclusively state-based mechanisms contemplated by the conventional laboratories account. So, too, Gluck argues that “administrators are not all equal” and that a nationally oriented member of Congress might sensibly prefer state implementation over federal implementation.98 Implementing federal law at home lends it a different shape than Washington-based implementation.99 National actors, in short, have plenty of reasons to prefer the “disuniform implementation of national law.”100 So, too, Rodríguez argues that decentralized conflict and the percolation of national debates often inure to the federal government’s benefit, an insight reflected in statutory delegation as well as federal enforcement schemes.101
While much of the work of the nationalist school focuses on improving national politics and national policymaking, not aggrandizing national power, at least some of that work shows how the federal government can increase its power by devolving it. That might seem like a counterintuitive claim.102 But contributors to this Feature have shown that self-interested national actors have as much of an interest in state power as does the disinterested social engineer.
Gluck has been a leader on this front, showing that federalism can be a “tool of national power.”103 When Congress uses states to implement federal law, state participation helps “entrench” the statutory regime and invests more political actors in its success.104 Delegating power to state agencies even allows the federal government to engage in “field claiming.”105 It eases federal entry “into a field of lawmaking traditionally governed by the states,” thereby further extending the federal government’s reach.106
Rodríguez has similarly sought to separate the perspective of self-interested national actors from national interests writ large. Like Gluck, she believes that the federal government has its own institutional interests and needs to be understood as simply “one actor in the system.”107 Although both scholars focus on the federal government’s long game, Rodríguez has taken that insight in different directions. Rodríguez highlights instances in which self-interested national actors favor devolution even to states pursuing policies that are inconsistent with federal law. The Obama Administration’s grant of waivers, for instance, assures the robustness of federal programs by giving states much-needed opportunities to adapt them.108 So, too, federal officials have been happy to let states take the lead in promoting marriage equality or de-escalating the war on drugs.109 “Because of a variety of political and institutional pressures,” she writes, the federal government “cannot be the prime mover” in these processes, but nonetheless has an interest in their going forward.110
If the nationalist school has expanded our list of the ends of federalism, it has also identified new institutional means for achieving those ends. For conventional accounts, the states and the federal government are the sites that matter, with much of the emphasis placed on the states. The nationalist school has offered a more textured account by (1) disaggregating the states and federal government into their component parts; (2) pushing federalism all the way down, looking not just to state institutions, but substate, local, and sublocal institutions; and (3) paying attention to federalism’s horizontal dimensions, not just its vertical ones.
Consistent with the bad habits of constitutional theory generally, conventional federalism often treats the states and federal government as if they were “its” and not “theys.”111 Members of the nationalist school have taken the opposite tack. Some have disaggregated the states themselves, emphasizing differences rather than continuities among them.112 Others have “dissected” the state and federal government, to use Rick Hill’s evocative phrase,113 and thereby moved beyond stale debates about “the” states and “the” federal government. Indeed, much of the work of the nationalist school begins with this move, breaking state and federal governments into their component parts rather than treating them as unitary, homogenous institutions.
Building on the work of scholars like Rick Hills and Larry Kramer, for example, most of the contributors to this Feature have focused heavily on the administrative dimensions of federalism, keying their work to the role states play in implementing and interpreting federal law.114 Gluck insists that this form of cooperative federalism is where all the action is nowadays,115 and the nationalist school has certainly heeded that advice. For instance, Bulman-Pozen and I have emphasized the uncooperative dimensions of cooperative federalism and the federalist safeguards of federal administration.116 I’ve developed accounts of the “power of the servant” to describe the influence states and localities wield as the center’s agents.117 Bulman-Pozen describes how state actors vindicate congressional interests and challenge the federal executive in cooperative regimes.118 Gluck has singlehandedly defined the field of “intrastatutory federalism.”119 She has even schematized different variants of cooperative federalism.120 Indeed, while Rodríguez, Bulman-Pozen, and I focus on blended policymaking and political regimes, Gluck focuses on blended interpretive regimes. As a result, no one has done more work on the interpretive puzzles these regimes raise.121
Interestingly, Rodríguez’s immigration work and LaCroix’s historical work also fit with this administrative turn. Rodríguez argues that local, state, and federal governments constitute an “integrated regulatory structure” in the immigration arena, one that has largely been hidden from view by the field’s doctrinal frame.122 She’s also shown how state and federal enforcement and administrative decisions constitute one another. Similarly, LaCroix has unearthed the ways in which the Founders wrestled with the question of “multilayered authority” and “multiplicity’s institutional and practical significance.”123 That work has shown how contingent today’s conventional wisdoms are. Earlier debates over joint regulation, for instance, rested on the assumption that it was better for Congress to force states to do something than for Congress to do that work itself, a notion that’s in deep tension with conventional federalism’s tropes.124
“Dissecting” the state and national government has allowed us to take a different view of the states’ role in “Our Federalism.” Bulman-Pozen and I, for example, have emphasized the nominally bureaucratic role played by decidedly political actors (including state legislators and governors), something that allows them to serve as a source of contestation and dissent within the Fourth Branch.125 Gluck’s work on the relationship between state and federal courts—which debunks the long-standing assumption that federal courts and agencies implement federal law and state courts and agencies implement state law—has been field-opening.126 So, too, LaCroix has uncovered the early role that the federal courts played in federalism’s development. The Federalists’ “judiciary-centric federalism,” she writes, viewed the lower federal courts as “the most important symbolic and institutional nodes by which the people of the nation would encounter the authority of the general government.”127 The expansion of the lower federal courts and federal jurisdiction was central to the early struggles over federalism and helped “cement” a nationalist vision.128
Some of this work has been more granular, focusing on the complex interactions that take place within individual policy domains. Rodríguez has written the leading work on immigration federalism.129 Gluck, along with Ted Ruger and others, writes at the intersection of health law and federalism.130 But the vast majority of this work has been done by those whose work is not featured here. For instance, Dan Richman has been an important voice on the federal dimensions of policing.131 Bill Buzbee, Ann Carlson, Kirstin Engel, and Erin Ryan are a few of the stars of environmental federalism,132 which has been ground zero for much of the new thinking on federalism.
Bulman-Pozen’s burgeoning work is emblematic of how many ideas emerge when one pulls apart institutions once treated as if they were unitary.133 She shows how partisan alliances between state and national actors crisscross the regulatory terrain in a complex and unexpected fashion.134 In her essay for this Feature, for instance, she “break[s] open the national side of cooperative federalism” to show that “the diversity and competition generated by state administration of federal law do not follow from state-federal separateness,” but that instead “states ally themselves with certain federal actors and interests to oppose others.”135 Rodríguez’s work suggests even more variegation within the federal government. She breaks down the constituencies that exist within a single Administration, showing that federal policies are often shaped by these internal divisions.136
Some members of the nationalist school have disaggregated the states in a different way, arguing that “Our Federalism” extends beyond the states. I have argued that federalism should be pushed “all the way down” and thus understood to encompass not just states, but the substate, local, and sublocal institutions that constitute states: juries, zoning commissions, local school boards, locally elected prosecutor’s offices, state administrative agencies, and the like.137 Federalism’s values are vindicated by the many sites where national minorities wield power as local majorities.138
So, too, a good deal of Rodríguez’s work has focused on cities, public schools, and social-service agencies as sites of contestation and debate.139 She’s placed special emphasis on what she calls the “discretionary spaces of federalism,” where policy decisions must be made and “actors within the system must [therefore] figure out how to interact with one another.”140 In her other work, Rodríguez has looked to nongovernmental actors,141 which she views as falling within the ambit of decentralization, but not federalism, since their decisions are not “instantiated in law.”142
Finally, building on the work of two of my colleagues,143 several members of the nationalist school have complicated our understanding of “Our Federalism” by attending to relations among the states. Ari Holtzblatt and I have recently put forward the first account of the “the political safeguards of horizontal federalism.”144 I am also co-authoring a paper on the “myth of the laboratories of democracy” that uses cutting-edge research on state-to-state relations to upend some of the basic assumptions undergirding federalism doctrine.145 So, too, Rodríguez has argued that “[h]orizontal federalism . . . is as central to understanding the utility of our governing structure as the vertical dynamics of sub-federal entities’ interaction with the national” are.146 And Bulman-Pozen’s account of “partisan federalism” views federalism through the lens of networked national parties and thus imagines it as something other than an “exclusively top-down, Washington-centric affair.”147 Her framework enables us to think more deeply about questions as general as the relationship between citizens and states where they don’t reside148 and as specific as cross-state campaign donations.149 Finally, Gluck has argued that statutory federalist regimes don’t just bind state and national officials to one another, but generate networks among state officials as they administer the same program and dicker over its implementation.150 She also identifies a horizontal federalism of a different sort: state adoption of uniform laws which, in her view, pushes toward a nationalist approach even in the absence of congressional action.151
Any account of federalism must identify what gets it up and running. The least reflective vein of conventional federalism has followed the lead of constitutional theory, assuming a simplistic Madisonian account in which “ambition is made to counteract ambition.”152 On this view, state and federal officials pursue distinct “interests” as they compete for the hearts and minds of citizens. Many have found this account deeply unsatisfying. Much of the pushback against Wechsler’s political safeguards account, for instance, challenged this assumption.153 There’s even been an intense debate on whether states have distinctive identities in the first place.154
Because members of the nationalist school refuse to valorize the states as states, they have new ideas about what fuels federalism’s dynamics. Bulman-Pozen has argued that partisan competition is what brings federalism to life (and, in doing so, has recast the debate on state identity).155 On her account, “states participate in controversies that are national in scope and do so on behalf of the nation’s people at large.”156 Although she sees partisanship as the prime mover of contemporary federalism, she also gestures to a broader account of politically charged federalism.157 Rodríguez and I argue that networked interest groups and political outliers can serve as the wellsprings of federalism, providing the political energy necessary to jumpstart debates, pass new policies, and move an ossified system forward.158 These interests are more variegated than partisan identities and don’t break down neatly along state lines, which may help explain why, as Rodríguez’s work suggests, some enclaves are impervious to outside influence while others are quick to take up red or blue policymaking mantles.
Conventional federalism has been centered around the case law; that’s why the sovereignty/process debate has absolutely dominated the field. Perhaps as a result, conventional federalism often offers a distinct picture of state-federal interactions, one involving one-off battles over regulatory terrain and focusing on whether the judiciary should serve as the referee. Despite the efforts of process scholars like Ernie Young, Larry Kramer, and Rick Hills to complicate this debate, conventional federalism continues to place undue focus on turf wars between autonomous governments.
The work by the nationalist school emphasizes state-federal interactions that bear scant resemblance to this picture. Every contributor to this Feature writes about areas of federal-state regulatory overlap. The federalism we describe, then, is a federalism largely “sheared of sovereignty,”159 at least as traditionally understood.160Bulman-Pozen and I, for instance, have written about the “power of the servant” or “agency as a form of influence” in describing states’ relationship to the federal government.161 Gluck writes about federalism “at Congress’s pleasure.”162 Rodríguez has highlighted sources of local and state power where the federal government is thought to be preeminent.163 LaCroix has shown that notions of state and federal power have always been contingent and subject to contestation.164
Because the nationalist school focuses on the administrative, discursive, interpretive, and partisan dimensions of federalism, it recognizes that there are many forms of state power. Conventional thinking about federalism has moved beyond sovereignty as the touchstone of power, but it still clings to an autonomy model (which at least one of us believes is proof that federalism remains haunted by sovereignty’s ghost).165 The contributors to this Feature, in contrast, write about the power states enjoy as agents when they implement federal law,166 the power states enjoy by virtue of the fact that they are embedded in a larger political system,167 and the sovereign-like role states play in the national policymaking process.168 We all have a different theory about what forms state power takes, but we’re in agreement that there cannot be one theory to rule them all.169 We use the phrase “Our Federalism,” but it would be more accurate to say that we are writing about “Our Federalism(s).”170
Finally, because much of the nationalist school’s work focuses on areas of administrative overlap and joint regulation, most of us understand state-federal interactions to be iterative, dynamic, often informal, and typically blending a mix of conflict and cooperation.171 In some places, we see “uncooperative federalism.”172 In others, we see “negotiated federalism.”173 In still others, we see “polyphonic federalism,”174 “dynamic federalism,”175 “iterative federalism,”176 and the like.
LaCroix suggests that the changing nature of state-federal regulation has even influenced the way these cases are litigated in the courts (the traditional focus of conventional federalism scholarship).177 The reason the “shadow powers” embedded in the Necessary and Proper Clause and the General Welfare Clause are now front and center in judicial fights, she argues, is that “contemporary legal and political players [have] determine[d] that there is no more room to move the doctrine in the domain of ‘real’ enumerated powers, such as the commerce power.”178 And she thinks the Justices are construing these “shadow powers” to reflect their own concerns about the turn toward joint regulation and the appropriate relationship between the states and the national government.
Finally, any account of federalism must offer what Robert Schapiro has called “rules of engagement”179—an account of how state-federal interactions ought to occur. As Gluck points out, recent developments in federalism don’t just raise interesting theoretical questions; they also raise “‘law’ problem[s].”180The work on conventional federalism is particularly deep and well theorized along this dimension. Sovereignty federalism, process federalism, administrative federalism—all represent efforts to identify the rules of engagement.
The nationalist school has done much less work on this front. Indeed, there’s a case to be made that identifying “rules of engagement” is the most pronounced weakness of this school of thought—a “sorry state of affairs,” to use Gluck’s diagnosis.181 Were it not for scholars like Gluck, Erin Ryan,182 and a handful of others,183 we wouldn’t have much to say.
One reason for that omission is methodological. A great deal of the work in this area is descriptive; it’s designed to connect federalism theory with what’s actually taking place on the ground.184 Even the work that is normatively inflected is mostly interpretive; it tries to construct a normatively attractive account of existing institutional arrangements. Moreover, scholars doing this work typically focus less on how we ultimately balance the costs and benefits of devolution and more on what goes on the scale in the first place (a move I have defended elsewhere).185
Moreover, members of the nationalist school set out to complicate the story we tell about federalism. The problem is that we’ve succeeded. It was hard enough to get traction on federalism’s fights when the only actors that mattered were “the” state and “the” federal government, when each camp had a limited list of the values served by devolution or centralization, and when constitutional theory didn’t pay enough attention to on-the-ground realities. Complexity makes it even harder to identify the rules of engagement.186
Nonetheless, at some point someone has to decide something, and the nationalist school hasn’t (yet) said enough about who should decide, let alone how. To be sure, good law professors all, we often give doctrinal examples to show how our ideas would matter. Some of us have even vaguely gestured at what the “rules of engagement” might look like in practice. But developing that sort of model is far easier said than done, which is precisely what makes much of this descriptive and interpretive work frustrating in the first place.
Happily, two of the contributions to this Feature are largely focused on the rules of engagement. Gluck, who has already done yeoman’s work on the interpretive dimensions of federalism,187 devotes more than half of her essay to identifying concrete doctrinal questions that must be answered in the near term.188 Her analysis makes clear both the theoretical difficulties involved and the pressing importance of this task.
LaCroix, meanwhile, has analyzed the Court’s efforts to sketch the rules of engagement as it struggles to squeeze changes in state-federal relations into conventional federalism doctrine. That’s why the Necessary and Proper Clause has been transformed “from a regulatory and interpretive device that tend[s] to expand federal power into a tool for checking that same power.”189 Particularly evocative is her argument that the Court’s most recent federalism doctrine, with its emphasis on the limits of national power, “has cycled back to its 1930s incarnation, rather than continuing in the line laid down by the ‘new federalism’ cases of the 1980s and 1990s.”190 It is both an elegant end to LaCroix’s piece and a useful warning about the hubris involved in declaring anything to be “new.”
If we can describe recent work on federalism as “new,” then we should also describe it as the “new nationalism” and recognize the emergence of the nationalist school of federalism. The boundaries that once divided the nationalist and federalism camps have dissolved as federalism has evolved. Nationalists often pride themselves on taking a clear-eyed view of on-the-ground realities, rebuking their sparring partners for not coming to grips with the changes in federal power brought on by the New Deal. But the nationalists are now the ones behind the times, as they have not yet absorbed how much state power has changed in recent years. States now serve demonstrably national ends and, in doing so, maintain their central place in a modern legal landscape. Even someone who dismisses notions like sovereignty and separate spheres, someone who is skeptical of state autonomy, someone who glories in the rise of national power and the importance of national politics has reason to believe in federalism. The nationalist school is premised on the idea that we should make the best of federalism’s virtues rather than wish away the existence of a system that is here to stay. It’s an effort to convince all of us to take ownership of “Our Federalism.”
heather k. gerken*