Never Forget! Republicans Are the Party of States' Rights (Except Their Right to Regulate Corporations)

So the House of Representatives just passed a bill that would prohibit states from requiring the labeling of genetically modified food. I mention this not so much for anything about the merits (as to which, my best impression is that there's no good reason to think GMOs are problematic, but also I don't see any real harm in labeling them; if people want to be idiots that's sort of their business and it doesn't feel right to trick them into doing what you think is best for them) but because of the constitutional politics of it. Because, y'know. The operative words of the bill are "prohibit states." Which is not a very states' rights-y thing to do. To be clear: this is absolutely constitutional. Congress has the power to regulate interstate commerce and to preempt any state laws contrary to its own regulations. That isn't, or at least shouldn't be, in controversy. But anyone who really believed in the political values of federalism, in the modern, pro-state sense of that word, would oppose this bill.

But of course, the people who passed it are precisely the ones who like to go on and on about states' rights. So the next time any Republican talks about how, I dunno, the Voting Rights Act or whatever violates states' rights, just remind them of the time that they passed a bill that would literally remove the states' right to protect their citizens from what they perceived as a potentially threatening or deceptive trade practice. The main state's right they care about is the right to discriminate; if there's a conflict with corporate rights, federalism is going to lose every time.

State Judges Should Ground Their Rulings in Their State's Constitution

It always feels a bit weird to me when a state Supreme Court has held that some law or practice of that state is unconstitutional, and then the U.S. Supreme Court reverses. Like, I dunno. If a state legislature refrained from passing a law because it thought the law violated the federal Constitution, but the federal courts disagreed with this conclusion, they wouldn't be able to force the state into passing the law. Why, from the federal government's perspective, should it matter which officials within the state government decide that the state is not going to have a certain law, because they erroneously believe it to be unconstitutional? It feels like forcing the state to do something it doesn't want to do, which is just weird. Of course, I get that this logic doesn't really hold, among other things because someone will have appealed the case to the Supreme Court, either the state government itself (in which case it's not quite right to say that, as far as the feds are concerned, the state doesn't want to enforce the law) or a private party whose success in some lawsuit depends upon that state law's being valid. That person is entitled to their judgment unless the federal Constitution says otherwise. So, I get it. The federal courts are allowed to reverse state court decisions interpreting the federal Constitution, even when that means vacating a judgment voiding a law of their own state.

But... why would a state court ever allow one of its judgments to suffer this fate? Because the thing is, just as state courts have no authority to interpret the federal Constitution contrary to how the federal courts interpret it, so too do the federal courts have no authority to interpret state constitutions contrary to how the state courts have interpreted them. And I believe that almost every state constitution has general language in it similar to the Due Process and Equal Protection Clauses of the Fourteenth Amendment, which are responsible for the overwhelming majority of the unconstitutionality of state laws. (Technically much of that burden should fall on the Privileges or Immunities Clause, but as a doctrinal matter it doesn't so that's beside the point for this purpose.) So, therefore, if I were a state supreme court and I were drafting an opinion striking down some state law because I thought it contrary to the federal Constitution, I know what I'd do, every single time: I would include a bit of language saying that, oh yeah, the analogous language in my state's own constitution commands the same result. Because, you see, the federal courts can't touch that holding. So even if they think I'm wrong about the federal constitutional issues, they can't actually reverse my judgment and reinstate the law. Hell, if I include one paragraph making clear that I've read my holding into the state constitution as well, the government (or whoever) can't even appeal to the federal courts, because the case would be moot! It would totally immunize my judgments (of this sort) against federal reversal.

I'm reminded of this by seeing a dissenting judge in a Georgia case about racially discriminatory peremptory strikes in the selection of juries argue for a similar tactic. Except there, the federal law had already been established, so the court would just have been saying, "well, yes, the federal Constitution doesn't require this, the Supreme Court has said so and we're bound by that, but we think the Georgia Constitution does." Quite rightly, he admits that Supreme Court doctrine limiting the application of the rule against such discriminatory strikes is binding on the Georgia court, but as he points out, there is absolutely nothing wrong with interpreting the state's own constitutional guarantees to go beyond the federally-mandated "floor." Just so: when the federal courts decide that a certain state practice is unconstitutional, that's the end of things, but when they decide a practice is constitutional, state courts are still allowed to have their own say, and they may do so in ways that no federal court can touch. Even of nothing more motivates the state judges than a belief that the federal courts are wrong, and should be interpreting the federal Constitution differently! State judges have essentially plenary power to effectively nullify any federal constitutional decision upholding state practice. And that's good--this isn't like ordinary nullification, where a state tries to nullify a federal law or do something that the federal courts say does violate the federal Constitution, because there's nothing in federal law requiring the states to do things the Supreme Court says aren't unconstitutional.

So why don't we see state courts using this tactic more often?

Why Abortion Has To Be Federalized

My constitutional law small-group class has spent the past couple of days discussing abortion and Roe v. Wade, and there are basically two battles here. There's the battle on the merits, namely, if we have to decide how to balance the various quite compelling interests at stake here, how should we go about doing so? But there's also the institutional-role battle: is this something the federal courts should be handling? Since the constitutional text is ambiguous on many of the key points of the on-the-merits debate, shouldn't states be left to form their own democratic judgments? There's a problem with this, however. This is not really a case where the existence of important federal-constitutional rights is in question. Rather, the ambiguity concerns whether there are countervailing interests at stake sufficient to justify what look on inspection like violations of those rights. The pro-life case, in other words, is not about denying the importance of a woman's control over her own body (well, unless the pro-life movement lets its id speak a little too openly), it's about asserting the overriding importance of protecting the life of the unborn child.

If you wish to deny the existence of unenumerated rights altogether this claim ceases to be true, but the Supreme Court has never once done so. Once you admit that these rights, which are properly viewed as Ninth Amendment rights but which in practice go by all sorts of doctrinal disguises, exist, I doubt there are very many in American society today who would accept the consequences of denying a right to bodily integrity generally beyond the abortion context. So it's clear that, at least under the underlying principles of modern individual-rights jurisprudence, anti-abortion laws must interact, somehow, with constitutional rights, and the question is the nature of that interaction, and how far a state may legitimately go toward restricting these rights in this context. Obviously the Supreme Court must set a nationally uniform minimum protection level. Conceivably it could also set a nationally uniform maximum, too, depending on how strong it finds the countervailing interests in certain contexts. In the gap between maximal and minimal protection, or simply between minimal and complete protection if no maximum is set, states are given full license to conduct their federalist experiments in democracy.

But once those national rights are implicated, it simply becomes infeasible to allow an individual state to adopt, say, the proposed Mississippi personhood amendment. Someone needs to say whether the valid state interests that could be argued to exist in preventing the abortion of a given pregnancy, or in a given pregnancy scenario, are sufficient to negate the protective force of those rights, and plainly that someone cannot be the states. This is not an area where the Constitution can be seen as silent, as leaving things simply in the hands of state legislatures; it is, rather, an area where important values under the federal Constitution are in conflict, and if the Fourteenth Amendment says anything* it is that the solution to such a conflict must be a federal one. The alternative is for the Court to allow states to restrict abortion, and with it the rights of pregnant woman and their doctors, in ways which the Court believes, in its own considered legal opinion, are not sufficiently justified by any legitimate state interests. Or, alternately, for the Court to allow states to permit abortion, in violation of the fetus' right to live, without sufficient justification, if its conclusion on the merits was that certain kinds of abortion had to be criminalized, perhaps on Equal Protection grounds. Either way the Court would be allowing states to violate important constitutional requirements, simply because the answer how best to balance the various interests at play in the abortion debate is not immediately obvious from the constitutional text. I can't imagine any reason to favor that approach, other than substantive disagreement with the Court's on-the-merits judgment and a resultant desire to minimize that judgment's reach.

In my next post I will address what I think the correct minimum protection would be, i.e. what I think is the most restrictive abortion statute that could possibly survive constitutional challenge under what I would consider proper jurisprudence.


*Well okay, technically if the Fourteenth Amendment says anything it's that the government mayn't discriminate against black people as such. But in terms of the broader political theory of the Constitution, its basic effect is to nationalize individual rights.

Confusion over Compulsion

In the first third of the twentieth century, the Supreme Court occasionally was inspired to state that certain acts of Congress which were undeniably exercises of its enumerated powers, like the power to tax and spend for the general welfare or the power to regulate interstate commerce, were nonetheless unconstitutional because they touched upon subject areas inappropriate for federal consideration. For instance, a tax on the interstate shipment of goods manufactured using child labor was unconstitutional, notwithstanding Congress' clear power to tax things that get shipped across state lines, because (apparently!)

regulating child labor was just something Congress wasn't supposed to do. Likewise, the Agricultural Adjustment Act was struck down in 1936 because regulating agriculture was something Congress wasn't supposed to do, and a certain bundle of taxes and spending were considered to be regulations of agriculture. This approach was, of course, pretty much abandoned after 1937 in all post-New Deal jurisprudence, and for good reason: it was silly, it was confusing, and it lacked any foundation in Constitutional text. How is one to know, looking at the text of the Constitution, which subject areas are or aren't appropriate for federal treatment? Moreover, if Congressional exercise of its enumerated powers is subject to such censorship on the basis of old-fashioned notions of propriety, the government will be perpetually unable to meet the needs of a changing world, not because it lacks the authority to do so under the Constitution, but because the needs are new and people are unaccustomed to thinking of Congress using its powers in that way. Categorical federalism, as it was called, was a mess, and was rightly abandoned.

But in the last third of the twentieth century, and continuing right through June 28th, 2012, the Court has developed a new standard by which to judge Congressional exercise of its taxing, spending, and regulatory powers against some notion of state sovereignty: the compulsion test. The basic idea is that Congress may not compel or coerce states to behave a certain way. South Dakota v. Dole, among other cases, upheld a law in part by finding that it wasn't coercion. New York v. United States struck down one provision of a law on the grounds that it was compulsion of state legislatures. Printz v. United States held that Congress couldn't conscript state law enforcement officers into the administration of federal regulations. And, a few weeks ago, the Court in National Federation of Independent Business v. Sebelius held that changing the conditions of a federal/state jointly-administered spending program could amount to coercion, if the dollar figures involved were big enough. In my opinion there's a tremendous amount of confusion in this whole area, mostly because the Court has declined to pursue one of the two clear, coherent paths of reasoning on the issue.

Define "No Choice"

The lynchpin of the argument, accepted by all but two (awesome) Justices of the Supreme Court, that the Affordable Care Act's expansion of Medicaid was unconstitutional is the idea that Congress cannot "coerce" states into adopting such-and-such a policy by threatening to withhold funds. It cannot leave states "no choice" in the matter. The test implied is that very modest financial incentives are okay, but larger ones are not, or, in this case in particular, that incentives involving the removal of funds currently given to states and upon which those states currently rely are not acceptable. But this criterion does not sit well with the simple fact that this case concerned very specifically federally-imposed conditions on the spending of specific federal dollars for a specific program. Yes, states rely on Medicaid funding. What do they rely upon Medicaid funding for? Medicaid! If a state fails to comply with Congress' conditions for Medicaid programs, they lose their Medicaid funding, but they also lose their Medicaid expenses, because they lose their Medicaid program. The part of a state's budget that isn't Medicaid is left untouched. Everything the state does aside from Medicaid, that is, has not been threatened.

Now, it's true, as Justice Ginsburg's awesome partial concurrence, partial dissent (and the dissent is really the best part) points out, that state officials rendering actual judgments as to whether or not to accept the new conditions and get the new funds do not actually have much of a choice. But that's just because Medicaid is such an obviously sweet deal that voters in every single state, from Vermont to Wyoming, would throw their state elected officials out of office ASAP if they decided to opt out of Medicaid. But that's not a gun to the head! This is "not having a choice" in the same way I wouldn't have a choice if you offered me $1,000,000 on the condition that I said "thank you" afterwards. It's bloody obvious that I'll be better off, and spectacularly so, if I accept. No rational person could choose to decline. Likewise, no rational state could choose to decline to accept the Medicaid funds. But Congress is not threatening, in order to get states to run the Medicaid program the way Congress wants, to make non-complying states worse off than they would have been if Medicaid didn't exist.

Now, if the federal government routinely paid for 50% of each state's budget, by simply handing over that much money and telling the states to use it to pay for stuff, and then attached conditions saying, oh, and by the way, if you don't pass laws X, Y, and Z we'll cut your funding off, that would be coercion. Those federal dollars would have become intertwined in everything the state does, and the loss of them would present the state with only two choices: double state taxes, or halve state services. That's a gun to the head. And that's why the crucial difference between conditioning funds on meeting certain requirements about how you spend those specific dollars and conditioning funds on unrelated policy is so important. A state that decides not to comply with the new Medicaid provisions will stop having Medicaid, or perhaps it could choose to raise sufficient taxes to run a Medicaid-esque program by itself. But the simple fact that the Medicaid program is such a large portion of states' budgets, and that federal funds for it are such a large portion of state revenues, does not mean that states depend on those funds. It means Medicaid is a big, expensive program. As it happens, people like Medicaid, and will want to keep it quite a lot, even if that means accepting new conditions. But it's not something they were doing before Congress came along that Congress is now threatening to interfere with.

The Outdated Logic of Federalism

When, in the 1770s and 1780s, the Founding Fathers set out to create a government for the colonies that were declaring their independence from the British empire, they faced what they thought was a big problem: the new nation was too big. They were committed to representative, republican government, see, and it was received wisdom that democratic forms of government just didn't work except in very small settings. A city-state like Athens? Fine. But a country sprawling over hundreds of thousands of square miles, most of them rural? It had never been done, and they assumed it couldn't be done. The logistics of governing so much territory, and of trying to have engagement and feedback by the citizenry on a regular basis, would just be too difficult. Thus, federalism, which maintains the smaller state governments as the primary--and independent--bases of day-to-day governing. Because the states were closer to the people, literally, they would be more responsive to those people, and everything would be great.

The 17th Amendment and the States

Texas Gov. Rick Perry apparently is one of the people who opposes the 17th Amendment, which shifted the election of Senators from a power of state legislatures to something handled by direct popular election in each state. Here's the quote:

I think the issue is about consolidating the power in Washington, D.C. The 17th Amendment is one of those where they were making... the states were historically more in control when they decided who those senators were going to be. They took the states out of the process at that particular point in time. So that’s the... uh... the historic concept of checks and balances, when you had the concept of the federal government and the states. The 17th Amendment is when the states started getting out of balance with the federal government, is my belief.

Now, see, he's not entirely wrong about this. It is indeed very possible that the switch to direct election of Senators created a political culture in the federal government that is less respectful of state power, and/or less reticent about using federal power, depending on your point of view. But what Perry glosses over entirely is why exactly this is a bad thing.

You Call That Federalism?

Canada, so we are told, has a federal structure, as the United States does and as France does not. There are ten provinces and they each have their own legislatures and they get to make laws for themselves, etc. But here's what an article comparing Canadian and American federalism had to say about the details of Canada's system: 1) National courts review, and interpret, provincial laws; 2) the central government participates in appointment of most provincial judges; 3) provincial governors are appointed by the national executive and can be removed (for cause) by him or her; 4) the national government may "disallow," that is to say repeal or overturn, any piece of provincial legislation within a year of its passage. That strikes me as basically adding up to a situation in which the provinces have actually zero independent power that they can exercise wholly on their own initiative. You call that federalism? To me, that sounds more like a bunch of administrative units that the fundamentally-unitary government suffers to exercise certain powers. Now, hey, I like the idea of that kind of delegated federalism (in fact I think I might write a paper about it shortly), but I still think it's weird that we consider Canada federal at all given all of this.

The United States Is Smaller Today Than It Was In 1787

According to Google Maps, it takes 20 hours to walk across Rhode Island on the longest diagonal that's entirely over land, and about 5 hours to bike that same distance. It takes about 10 hours to fly from Maine to Hawaii. When this nation was founded the fastest mode of transportation available was probably the horse, which I don't imagine was much faster than bicycles are nowadays. Now we have planes. The result is that you can get all the way across the country today in only about twice the time it would have taken to traverse Rhode Island, the smallest state in the Union, back at the time of the founding.

And, of course, the time it takes to send a piece of information from Maine to Hawaii is, well, zero seconds. It still would have taken five hours to get information across Rhode Island in 1787, because communication was only as fast as transportation in those days.

Conclusion? This nation has actually shrunk a whole lot since 1787.

My Problem With Federalism

Whenever I hear people talk about federalism, or something like the paper we're reading this week for ConLaw about what number of sub-national units are optimal for promoting a dual-federalism balance between local and federal power, is: why do I care? When we talk of America's being "dangerously close to an omnipotent federal government," what is the danger? Specifically, given that it is ultimately elected representatives making the decisions at the federal level to exercise more and more power, why should we insist that the decisions about what sorts of powers will be exercised at the national level as opposed to the local level be made in a binding fashion up-front, rather than decided by the people as they go along? I see the categorical reason for wanting to limit the sum total of government power, but I'm not entirely sure I see a categorical reason for wanting to enforce certain rules about the vertical distribution of that power even if people don't like those rules.

Relatedly, I'm intrigued by the idea of what I call delegated federalism, which I suppose isn't really federalism at all but is really just when the central government grants non-negligible discretionary power to local administrative units. It strikes me that this sort of arrangement can simultaneously tap into a lot of the benefits of locally-customizable laws and avoid a lot of the problems with the "categorical federalism" approach we take in the U.S.. Basically the key point is that the decisions about distribution of power between localities and the nationality are made at the national level as a part of the normal political process. That way, if people actually want local authority, they get it, but you won't get the same kinds of lowest-common-denominator problems or civil rights problems we get in this country.

The Strange Obsession With Federalism

The Seventeenth Amendment, which made Senators elected by direct popular vote rather than selected by state legislatures, was a bad, bad thing, we are told. By drastically weakening the influence of the state governments upon the national government, the 17th Amendment threw American federalism all out of whack. Ever since then, there has been no effective power in the national government favoring the preservation of the power of state governments, and so the federal government has been appropriating more and more power onto itself. And this is bad, we are told.

Why is it bad? The Senators elected directly by the people are willing to vote for an overall federal policy that has the federal government exercising more power than a Senate chosen by state governments would. Okay. To me, as someone who believes both in democracy in general and in making democracy relatively non-convoluted, it strikes me that the problem is obviously on the side of the pre-17th Amendment-style Senate. Roughly speaking, "the Senate elected by the people" is the will of the people. So saying that the post-17th Amendment Senate has acquiesced to large expansions of federal power is saying that the people have made that acquiescence. Is there a problem here? If the American people tire of the old balance of power between the states and Washington, is there a principled reason why they shouldn't be allowed to change it? Should we bake in an institutional bias into the system that always over-accounts for the interests of state governments?

As an aside, it's not entirely true, necessarily, to say that federal power has expanded. Usage of federal power has expanded, there's no doubt about that. Say the federal government started exercising a lot more power beginning in 1937, the year the Supreme Court ratified the Second New Deal as Constitutional, and let's also say that the Court would not have upheld similar usages of federal power pre-1937. There are three possibilities. The first is that the Court would have been wrong in striking down the New Deal pre-'37. The second is that the Court has been wrong in allowing the New Deal and its progeny post-'37. The third is that something about the true, underlying constitutional order changed in 1937. There are a lot of people who believe that Door #2 is in fact the correct answer, and at least one of them is on the Supreme Court. Most, though, tend to think that the Court was mainly wrong in striking down parts of the New Deal before 1937, and that in truth most of the modern federal government is constitutional. But if you think that, then those things have been Constitutional forever, it's just that the federal government chose as a matter of policy not to do them. (Forever, or until as far back as you need to go to find a Constitutional Amendment that makes a difference.)

If you assume that the underlying true constitutional order does not actually change when the Constitution is not amended, then I would actually assert that the 17th Amendment, while it definitely changed the structure of American federalism in and of itself, did not create a climate that further eroded federalism. The net changes to the Constitution since 1913 have been either expansions of the franchise (which is admittedly a restriction on state power, but I think it's one most people would consider good) or relatively federalism-neutral things like fixing Presidential succession and establishing term limits for the President. Yes, the directly-elected Senate has probably been more willing to use the power the federal government is now generally admitted to possess. And it's possible that an indirect Senate like that of the old regime would have had a bias against confirming Justices who would interpret the Constitution in the way we typically consider correct nowadays. But that's a bug, not a feature.