PrawfsBlawg: Why does the Left fear constitutional federalism so much?

Sunday, July 01, 2012 Why does the Left fear constitutional federalism so much?

In this Sunday’s New York Times, Pam Karlan darkly warns us that, although the Left dodged a bullet with the decision upholding the ACA, the Roberts Court’s decisions limiting the power of the federal government “may come back to haunt liberals.” The Roberts Court’s precedents cutting back on the Congress’ spending power, the commerce power,and the power to enforce the Civil War Amendments is a “loaded gun” that aimed right at “Americans who care about economic and social justice.”

I am a little confused by Pam’s assumption that constitutionally protected federalism is a gun aimed at the Left. It is not obvious (at least to me) that a Congress with unlimited power is an unalloyed benefit to liberals’ ideas of “economic and social justice.” The Congress can, after all, enact laws that undermine as well as advance a liberal agenda: Why not view constitutional limits on Congress’ powers as an insurance policy against such laws in case the Republicans take control of the commanding heights of the federal government? Conservatives, after all, have proposed or enacted federal legislation outlawing same-sex marriage, requiring state and local governments to pay hefty compensation for environmental regulations, “commandeering” local law enforcement officials into assisting the feds in apprehending undocumented aliens, and barring federally funded universities from excluding military recruiters from interviewing job candidates on campus. The constitutional limits imposed on Congress by the Rehnquist and Roberts Court place obstacles in front of these conservative measures as well as liberal measures. The Roberts Court’s strengthening of the “nexus” limit on Congress’ spending power, for instance, could have prevented the Solomon Amendment. The anti-commandeering doctrine has helped protect subnational initiatives legalizing medical marijuana. Even federal laws that Pam favors can be used to undermine causes like racial equality: Republicans in Southern state houses right now are busily invoking the Voting Rights Act as a cover for “packing” black voters into majority-minority districts, thereby insuring that the Democratic Party is identified exclusively with one race and that Republicans gain a lock on state legislatures elected by white majorities. Is judicial deference to such a view of federal law a good thing for Pam’s vision of economic and social justice?

The assumption that a strong Congress invariably benefits “economic and social justice” assumes that there is an uncontroversial notion of “justice” out there that Congress will always advance and the states, always retard. But the best justification for federalism is that, because We the People passionately disagree about what constitutes “justice,” it is prudent to place some limits on any single faction’s imposing its particular version on the entire nation through national law. The precise nature of those limits matter, of course: I can imagine versions of constitutional federalism that might favor the Right (say, by depriving Congress of power over redistributive policies that stats cannot practically enact). Aside from Douglas v. Independent Living Center, however, no Roberts opinion comes close to touching Congress’ power to create social insurance and social welfare systems (and Douglas was unanimous — hardly a partisan coup). The general idea of such constitutional limits, by contrast, is not a gun aimed at either the Left or the Right. Unless one naively believes that one’s own faction will always control Congress, such limits are just sensible hedging of one’s bets.

Pam cannot possibly believe that the Democrats, let alone liberals, have a lock on Congress. So why does she seem so dead-set against some constitutional constraints on what Congress can do?

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"Why does she seem so dead-set against some constitutional constraints on what Congress can do?"
I'm guessing it's because she has an awareness much more acute than yours of the course of 20th-century history.

If there does happen to be an "uncontroversial notion of 'justice' out there," it includes prominently the idea that Jim Crow was wrong and an affront to what you quite correctly call the Civil War Amendments. The greatest success of the Left in the 20th century was in getting those Amendments actualized in their intent (more equality) through the use of the tool they created (federal power over state Bill-of-Rights violations).

You could argue that that struggle is over; I think you're probably wrong, as your example about maneuvers to get around the intent of the Voting Rights Act suggests. (That example doesn't suggest to me that states should be given carte blanche, but the opposite — the law should be improved if it's being circumvented. But this post isn't about the details.)

I suggest to you that even if you're right that federal power is no longer the best tool for advancing social equality (and then we should begin to count up which state governments could be such tools, and notice that many people will be left out, missing the point of the whole endeavor) — even if you're right, I say, Ms. Karlan's emphasis on federal power as a crucial tool of the Left is the opposite of puzzling. Federal power defeated the Confederate Army and enacted the Lilly Ledbetter Act. In between there are 150 years of US history, prominently featuring, to choose an example at random, the Arkansas National Guard, that should show you where Ms. Karlan is coming from.

Maybe you're making a subtler point, but it seems to me that your post is willfully ignoring the historical facts that lead people on the Left empirically to believe that federal power is progressive, and state power is reactionary.

No one on the Left is in favor of un-hedging all bets — but please note that the Left is more concerned with universal than with local well-being anyway. Many Jeffersonian ideals of the Right can be actuated on the state level, by having the federal government keep its hands off, but the Left can't win that way. The Lefty wants people in OTHER states than his/her own to have health care, access to abortion, and so on. Hence the Left project is inherently more suited to a Hamiltonian posture, because it is attentive to people who are getting outvoted in any subunit of government.

I don't mean this to advance a Leftish point of view particularly, but am speaking descriptively. As a descriptive matter, I find your puzzlement about Ms. Karlan's premises extremely puzzling. She is speaking with a basic awareness of American history; you seem to be focused on con law ex ante, in the abstract, as if the whole federal project had just been invented ten years ago.

Am I going off half-cocked? Set me straight.

Jim vdH

As a purely practical matter, too, the Left has reason to hope that it will get stronger in Congress in the next few decades, as demographic trends do their thing w/r/t Hispanics and the ebbing of this large generation of especially affluent senior citizens. So the Left foresees less need for hedging, and hopes reasonably to be on offense at the federal level while the Right hopes to defend state-level redoubts under a newly invigorated Tenth-Amendment jurisprudence.

Rick,

Pam's Op-Ed, and your blog post above, are entries in a very long-running conversation, mostly on the left perhaps, about the liberal-conservative valence of federalism. In my view, the bottom line of that conversation is this: Certainly it is true that federalism sometimes allows states to do progressive things, and that many federal laws pre-empt and undercut such state-level progressive experimentation. (Heather Gerken made a progressive case for federalism "all the way down" by pointing out, among other things, some neglected ways devolving power downward can empower racial minorities; Rich Schragger has explored what progressive federalism can offer and there's a lot.) But in the end, there is no symmetry here. Limiting federal power does, as Pam argues, have a definite conservative valence. It is not even close. (I suspect we'll be hearing more about this in her Foreword.)

The reason for the big asymmetry, in my view, is an even more fundamental asymmetry: Liberals, or maybe I should say progressives, need government action to accomplish our goals. Moreover, over time we periodically need government to act in novel ways to address novel problems. Conservatives often need government action too, of course — but it is not symmetrical. A government that does little or nothing is pretty conservative, overall.

Because many problems can be adequately addressed only at the federal level, this asymmetry in regard to the basic question of government power leads to an asymmetry in regard to federal power. Why can many problems be adequately addressed only at the federal level? Sometimes the reason is the free movement of people and goods and the problem of races to the bottom — if no federal environmental law then polluters can just pick the least-regulatory state, etc. Other times the problem is that the entities that liberals want government power to regulate or constrain are more powerful than state governments; only the federal government is a sufficiently serious counterweight to get anywhere. Still other times — and this one is more inchoate in my mind — the issue is that when it comes to individual rights, although both liberals and conservatives have various individual rights they care especially about protecting, there is an asymmetry regarding the location of the problems and the solutions. I think of Judith Resnik's work here. If you're a person being subordinated by the community you live in, what you want in terms of rights-protection is some larger, more distant government that can come in and do something about the discrimination around you, which local elites would not challenge.

You sound surprised in this post — and I guess I'm a little surprised that you're surprised. You know more about federalism than almost anyone. Pam's view can hardly be unfamiliar.

Posted by: Joey Fishkin | Jul 1, 2012 3:01:50 PM

Well, Joey, maybe I am only "pretend surprised," Joey: Yes, I am aware that the Left, in general, and Pam, in particular, has a bias for a nationalistic Constitution.

But I think that it would be prudent for the Left to temper its bias for Union Blue with a more sophisticated theory of federalism than a mere "reductio ad Jim Crowum" deployed by Jim above. The notion that the feds are a benevolent beast with the brain of Burke Marshall, the steely will of LBJ, and the heart of Lincoln is not a theory of federalism: That's just nostalgia — and pretty dated nostalgia at that.

Here are two reasons why I think that Left's fear of constitutional limits on Congress is overblown:

(1) National law can be de-regulatory as well as regulatory. There is a popular notion that unlimited congressional power gives the Left two bites at the regulatory apple. As you put it, progressives need government to accomplish their goals.

But much federal law is aimed at eliminating subnational regulation. Conservatives are champing at the bit to use abroad commerce power to sweep away subnational environmental laws (green taxis in NYC, green building codes in Albuquerque, etc, etc) with preemption clauses in federal statutes. Likewise, absent limits on section 5 of the 14th Amendment, the Congress could shut down subnational environmental law with a robust federal statute on regulatory takings. Historic landmarking laws are threatened by RLUIPA in a similar way.

More generally, an unlimited congressional power to champion "rights" is an unlimited power to champion property rights, contract rights (recall the labor injunction), rights to be free from race-base student assignments (recall Parents Involved), and so forth. In short, a love of robust regulation does not translate into a hatred of limits on Congress' jurisdiction, given that much of what Congress does is essentially deregulate.

(2) Local majoritarianism is not always the enemy. Yes, of course, I can imagine that the Left might sometimes welcome efforts to protect certain discrete and insular minorities. But they should fear other efforts: Not every discrete and insular minority is a darling of Progressivism. Federal solicitude for that most discrete and insular minority of them all, the owner of investment capital, led to 44 years of the labor injunction (1886-1932), a federal device that shutdown the labor movement when it had substantial support in many states.

I think that law schools need to graduate beyond "Federalist #10" and read a little Woody Holton (of "Unruly Americans" fame). Madison, after all, was championing the rights of bondholders and slaveowners. Both of these two groups frequently fit your description of "person[s] being subordinated by the community they live[d] in," who most definitely wanted "rights-protection" from a "larger, more distant government that can come in and do something about the discrimination around [them]." They got it, too, in the form of the Contracts clause and the Fugitive Slave Acts of 1793 and 1850. But I would not call these victories for progress.

Of course, there should be a TAILORED federal role in protecting CERTAIN minorities. Mine is merely a plea for a little more discrimination in these abstract attacks on discrimination. In an era in which the Left is organizing itself around attacks on the one percent, it sounds a little odd to structure a theory of federalism around the idea that minorities should invariably receive protection from subnational majorities.

But once one goes down the path of distinguishing "good" federal laws from "bad" ones, then one can see that there is a case for constitutional limits as a hedge against the latter.

Posted by: Rick Hills | Jul 1, 2012 3:45:27 PM

Okay, Rick, I have no dispute with you as long as you were only pretending to be puzzled about Ms. Karlan's premises. Her premises may or may not be truer than yours, but they are firmly rooted in many years of history, and for progressives those years (esp. the Civil Rights Era) are a founding myth that matters very much.

Your abstract observation about how federal power could be used in anti-Left ways stands up fairly well — although often deregulation is possible only because Congress has previously regulated. Consider for example the antitrust laws, which we take as a given part of the backdrop of everything but are in fact highly intrusive fixtures of Hamiltonianism.

The inverse examples of Congress superseding state regulation are only now beginning to mount up beyond the infinitesimal; generally federal statutes have had explicit carve-outs for state rules that are stricter than the regime imposed by DC.

My point was that your observation is pretty abstract and non-historical. I think that's true: the things you're highlighting, although they have happened and could happen, have in the annals of actual US history happened a lot less often than the opposite things.

(In fact, I call this argument the Reductio ad types of stuff that happened rather than the opposite type of stuff that happened much much less often.)

By the way, it's a little odd that you're scolding liberals for undervaluing state power at this particular moment, when they've just finally gotten a foothold with a very, very promising health-care-financing reform initiative tested in the laboratory of Massachusetts (showing liberal willingness to work from the ground up) and likely to work significantly better nationally than it does at the state level (because of race-away-from-the-top concerns JF invokes, which suggest how state efforts have serious drawbacks for Leftish agendas). I think progressives' view of how state government fits in to the things they want to accomplish is pretty coherent.

Jim

To the contrary, Jim: I'd say that your perspective is the ahistorical one.

Insofar as economic regulation is concerned, there are only two brief periods in which the feds took an economically egalitarian stance when compared to states. These two periods — the New Deal (20 years) and LBJ's Great Society (six years) — are dwarfed by the entire 18th and 19th centuries, during which the Republican business interests depended heavily on the federal courts to suppress Granger laws, state bond repudiations, state debtor relief laws, and the like. Ed Purcell's book, "Litigation and Inequality," is one of many antidotes out there to the ahistorical notion you peddle that the feds have stood for equality and the states, inequality. (Why else do you think that American business interests consistently championed federal power over state power as Federalists, Whigs, and Republicans, for more than a century?)

Looking more recently, just on the issue of health care, federal preemption has been a major factor in suppressing states' efforts at healthcare finance, many of which were more radical than ACA. ERISA's preemption of state "single payer" laws likely eliminated state laws that would have been more far-reaching than ACA. The Kucinich Amendment vainly sought to authorize state "single payer" laws, but it was defeated by the usual array of gridlock that prevents Left legislation from getting through Congress.

It is a fair response that constitutional federalism, as currently understood by the court, will do nothing much to stop laws like ERISA, because these measures fall plainly within the narrowest current understanding of Congress' commerce power. (Being a wild-eyed federalist myself, I'd urge constitutional theories that would limit such preemption — but I realize that I am a loner in this respect). But, by the same token, it is a fair response to Pam that she is crying "wolf!" regarding more judicial scrutiny of federal economic regulation: The notion that any plausible limits on Congress' commerce clause power threaten federal regulation of industry is sheerest paranoid fantasy. Republicans and capitalists depend on such federal statutes to preempt state laws: They'd never allow the Court to limit Congress' powers to enact precisely what, for most of U.S. history, industrialists have eagerly championed.

Posted by: Rick Hills | Jul 1, 2012 4:35:05 PM

Conservatives, after all, have proposed or enacted federal legislation outlawing same-sex marriage

What federal legislation is this? Conservatives have proposed Constitutional *amendments* barring SSM, but of course SCOTUS is powerless against such amendments. DOMA is subject to Art. III courts' review, but it doesn't outlaw SSM at all; it says the federal government will not recognize such marriages, which conflicts with the historical treatment of marriage by the feds (recognizing all marriages that are recognized within citizens' state of residence) but otherwise seems like a reasonable exercise of Congress's power to legislate for the feds.

barring federally funded universities from excluding military recruiters from interviewing job candidates on campus. The constitutional limits imposed on Congress by the Rehnquist and Roberts Court place obstacles in front of these conservative measures as well as liberal measures. The Roberts Court's strengthening of the "nexus" limit on Congress' spending power, for instance, could have prevented the Solomon Amendment.

How so? The Roberts Court, in a 9-0 opinion authored by the Chief, held "It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly," through Congress's broad power regarding military recruiting. One can argue that the Court avoided discussing Spending Power limits, but it said clearly that no limit on the spending power could have prevented Congress from mandating military recruiters on campus: "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds."

The anti-commandeering doctrine has helped protect subnational initiatives legalizing medical marijuana.

Apparently not very effectively.

So why does she seem so dead-set against some constitutional constraints on what Congress can do?

But of course she isn't dead-set against some constitutional constraints on what Congress can do. I'm not perfectly familiar with her views, but she presumably was very much in favor of the idea that the First Amendment constrained Congress's ability to force law schools to accept military recruiters on campus. I'm betting she'd also argue that the 14th Amendment right of equal protection should prevent Congress from same-sex marriage bans. Where you disagree is that she doesn't see Art. I — setting out Congress's powers — as the best source of constraint on Congress.

Ugh, didn't realize that HTML gets deleted from comments. The quotes from the post were meant to be in italics, and the "Apparently not very effectively" was meant to link to "Cities Balk as Federal Law on Marijuana Is Enforced," available at http://www.nytimes.com/2012/07/01/us/hundreds-of-california-medical-marijuana-shops-close.html

PG, the only reason that Bush proposed a constitutional amendment to ban same-sex marriage is that he believed — correctly — that the Rehnquist Court would have struck down a mere statutory ban as exceeding Congress' Article I powers.

As for spending power limits, the Solomon Amendment was effective only because the Court tolerates an attenuated nexus between the magnitude of the burden on the federal interest from non-compliance with a federal condition and the magnitude of the federal money to be forfeited for non-compliance with that condition. If Article I's spending power were construed to require a tighter nexus, akin to the nexus required in Grove City v. Bell, 465 U.S. 555 (1984), such a requirement would mitigate the threat of forfeiting federal dollars, because the amount at stake would be far lower.

As for the U.S. Attorney's recent efforts to step up enforcement of the Controlled Substances Act against medical marijuana, I assure you that they will be as ineffective as the older efforts. Outnumbered roughly 7:1 by state and local sworn officers, the feds have no serious chance of suppressing marijuana use without the cooperation of non-federal assistance.

Posted by: Rick Hills | Jul 1, 2012 4:56:06 PM

Rick, the fact that they are older doesn't make your 18th and 19th century examples more 'historical' than mine; it makes them less relevant. In thinking about the current uses of federal vs state power, should the Left be looking to the 20th century or the 18th/19th? I think the question answers itself, although I admit you have a good (though impractical) point about ERISA.

"The notion that any plausible limits on Congress' commerce clause power threaten federal regulation of industry is sheerest paranoid fantasy."
In light of the news today that for eight weeks the Court was writing opinions striking down the entirety of a massive overhaul of the incontrovertibly interstate healthcare and health-care financing industry, I think this sentence is hilarious.

Don't shoot bullets past the head of the Left and then try to say it's paranoid about judicial snipers.

And this week's example underscores the other obvious premise of people like Karlan or me: real-life conservative justices cannot be trusted to apply federalism doctrine evenhandedly. The Disney patent case is only the most obvious example of Scalia et al. ignore their own doctrines when someone tries to turn them to anti-corporate ends. Raich is the obvious example of the exact same maneuver in the realm of 'freedom to be left alone' generally. Federalism is a tool for cherry-picking, and ideological judges will use it that way. You'll forgive the Left for not acceding to the growth of a doctrine developed and deployed by intensely conservative jurists who are willing to ignore it when they like.

I call this argument the Reductio ad Bush v. Gore argument. Good luck cleansing that stain from the memories of those whom you suggest should stop worrying and just learn to love the Tenth Amendment.

JvdH

Don't shoot bullets past the head of the Left and then try to say it's paranoid about judicial snipers.

I call this argument the Reductio ad Bush v. Gore argument. Good luck cleansing that stain from the memories of those whom you suggest should stop worrying and just learn to love the Tenth Amendment.

JvdH

sorry for the double posting. Also sorry for saying 'patent' when I meant 'copyright.'