The Political Safeguards of Horizontal Federalism

• Author: Gerken, Heather K

Introduction

For decades, we have debated whether "political safeguards" preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state-federal tussles.1 No one has made a similar argument about relations among the states, however. To the contrary, the few scholars to have considered the question insist that such safeguards don't exist.2 This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism.

If you read the U.S. Reports, you'd probably miss that "Our Federalism" depends on relations among the states just as it depends on relations be- tween the states and the federal government.3 But while the vertical dimen- sions of federalism have generated countless paeans, courts and scholars have neglected federalism's horizontal dimensions.

We know how "Our (Vertical) Federalism" is supposed to work. Vertical federalism is thought to promote choice, foster competition, facilitate partic- ipation, enable experimentation, and ward off the national Leviathan.4 That account lends order and coherence to an otherwise motley range of doctri- nal questions, from preemption cases to the Spending Clause, from the reg- ulation of interstate commerce to commandeering.

The same can't be said of "Our (Horizontal) Federalism." Courts, of course, routinely referee disputes between the states and their citizenries. But judges approach these cases seriatim, without an overarching account of how interstate relations are supposed to function.5

Until recently, the academy has been little different, with scholars con- fining their analyses to horizontal federalism's doctrinal silos.6 But a handful of scholars have started to develop a transsubstantive account of horizontal federalism to match the one we routinely deploy for vertical federalism.7 The literature is small, to be sure, especially when compared to its well-devel- oped counterpart. But the work now shares a recognizable common core and has sorted itself into rough-and-ready intellectual camps. It is thus an appropriate moment to assess where that literature stands while offering our own take on where it should go next.

In our view, what's missing from the literature is an account of the political safeguards of horizontal federalism. And it's missing for reasons that go to the field's core commitments. Conflict is a recurring feature of both vertical and horizontal federalism. States intrude on each other's poli- cymaking turf just as often as the state and federal governments regulate at cross-purposes. What divides the two fields is how we should respond to the ineluctable fact of friction. State-federal friction has long been understood to be both a problem and a valuable part of a well-functioning democracy. Vertical federalism's goal, then, has not been to eliminate friction but to harness it, allowing productive state-federal contests to play themselves out. Moreover, most vertical federalism scholars think that the political arena, not the judiciary, is the right forum for these fights. Political institutions, not the courts, represent the true "safeguards" of federalism. And by the "safeguards" of federalism, we refer not to the unreflective notion that polit- ics is meant to safeguard state autonomy but to the correct formulation of the claim, which is that politics safeguards the type of state-federal relations necessary for our democracy to thrive.8

Scholars of horizontal federalism are much less sanguine about inter- state conflict, and most of them look to the judiciary to referee state-to-state conflict. Congress, administrative agencies, political parties, networked in- terest groups-all are thought to safeguard vertical federalism. But even though those same institutions are available to mediate conflict among the states, there is no safeguards account to be found in horizontal federalism.

Developing a political-safeguards account for horizontal federalism, then, involves both excavation and construction. First, we must dig into the doctrine and scholarship in order to account for the puzzling differences between the fields. Second, once we've examined (and debunked) the argu- ments that have prevented scholars from even thinking to develop a safe- guards account, we must build it.

As to the first task, it isn't hard to figure out why a safeguards account hasn't emerged in horizontal federalism. One idea unites the burgeoning scholarship and illuminates the hidden logic of much of its doctrine: lawyers hate spillovers. We've all absorbed the economists' lesson-some state activi- ties generate positive externalities. But when law professors and judges think about spillovers, they typically focus on the ones that generate contro- versy-those that residents of the affected state view with dismay. For in- stance, when lax gun-ownership enforcement in Virginia increases the number of firearms in New York, we worry. When Massachusetts marries same-sex couples from states that don't recognize those marriages, we worry. When California's emissions standards trump the emissions stan- dards of other states, we worry. When the Texas school board's efforts to move its curriculum in a socially conservative direction change textbooks for many states, we worry. We worry, in short, that state-generated spillovers cause interstate friction, generate inefficiencies, undermine the national marketplace, violate the autonomy of other states, and threaten democracy by preventing citizens of the affected state from choosing their own desti- nies.9 These worries so dominate the literature that we don't even have a name for the opposite but equally important notion-that some state poli- cies should cross state lines. The debate over whether states should recognize same-sex couples married in other states, for instance, centers on when it is appropriate to give a state decision extraterritorial reach. But while there is a substantial body of research devoted to spillovers, we lack a name for what we term spillunders.10

Just as most scholars aspire to prevent spillovers, most look to the courts to fix the problem. That impulse finds substantial support in the Supreme Court's doctrine. The Court, for instance, has relied on the Commerce Clause and the Due Process Clause to strike down state laws that reach be- yond state borders. Similarly, concerns about spillovers have influenced some of the Court's preemption decisions.

The current state of the law and literature makes clear why no one has thought to develop a safeguards account to match the one that dominates debates over vertical federalism. Why bother with the political safeguards if politics is the problem and the judiciary is the solution? Because we lack a descriptive and normative argument that interstate conflict serves productive ends, there is no reason to think that spillovers can or should be left to the free play of politics.

That leads us to the second task of this paper: building the descriptive and normative argument currently missing from the literature. Our argu- ment begins with a simple observation. The near-universal distaste for spil- lovers stands in sharp contrast to their near-universal presence in our system. Spillovers are a permanent and inevitable feature of the American regulatory landscape. This fact led us to wonder whether anything positive can be said of spillovers. After all, if an affirmative case can be made for spillovers, it should change the way we think and write about them.

None of this is to say that we have any quarrels with the well-known litany of grievances against spillovers. Our goal is to complicate this account, not engage in an intellectual cage match with our theory's competitors. The problem with the existing narrative isn't that we've overestimated the costs associated with spillovers; the problem is that we've underestimated their benefits. That's because spillovers generate friction, and friction has its uses in a democratic system.

The claim that spillovers generate friction may not sound like a propi- tious start for an affirmative case. After all, lawyers are allergic to spillovers because they force people to live under another state's rules, something that can engender controversy and conflict. But the friction generated by spil- lovers isn't all bad. Far from it. That's because interstate friction spurs dem- ocratic engagement. Spillovers prevent citizens from nesting too comfortably in their own policymaking enclaves, force political elites to engage with those on the other side of an issue, and create the conditions under which compromise and accommodation are possible, even necessary. Spillovers force us all to live under someone else's law, an underappreciated feature of a well-functioning democracy and an essential practice in a well-functioning union. Opponents of same-sex marriage, for instance, find themselves living next to a gay couple married in another state. Residents of blue states have to read the textbooks designed for a conservative Texas market. Skeptics of en- vironmental reform find themselves driving cars that meet California's high emissions standards. As a result, political elites in these states are prodded to reach across political boundaries, not just territorial ones.

Spillovers also give political entrepreneurs an opportunity to set the agenda, teeing up a fight that will generate more advocates for change and forcing reluctant state or national elites to engage. California's environmen- tal regulations, for instance, led the auto industry (which had been happy with the status quo) to join environmentalists in demanding national regu- lation. The threat that Hawaii would legalize same-sex marriage prompted the passage of the Defense of Marriage Act ("DOMA"). Spillovers are one of the best means of prodding politicians to do what they are supposed to do: politic, find common ground...