Book Review: Conservative innovators: How states are challenging federal power

• Date: 01 January 2020
• Author: Troy E. Smith
• Published date: 01 January 2020
• DOI: 10.1177/0275074019879936
• Subject Matter: Book Reviews

112 American Review of Public Administration 50(1)

Merriman, B. (2019). Conservative innovators: How states are

challenging federal power. Chicago: The University of Chicago

Press. 274 pp. $32.50 (paper). ISBN: 9780226620312

Reviewed by: Troy E. Smith , Brigham Young University–

Hawaii, Laie, HI, USA

DOI: 10.1177/0275074019879936

Ben Merriman has written an informed and engaging book

on how American federalism is being altered yet again, and

how the agents and dynamics influence that change. The

book focuses on Republican state officials’ innovative meth-

ods to challenge Obama administration policies, and it con-

cludes by showing that Democratic state officials are

adopting the same methods to challenge Trump administra-

tion policies. The Republicans’ innovative challenges to fed-

eral policies came after shifting away from “states’ rights”

and developing an expertise in administrative procedures.

Their efforts have redefined American intergovernmental

relations and, Merriman suggests, may have shifted the pol-

icy dynamic in favor of the states on issues such as social

welfare, voting rights, and environmental policy.

Merriman’s analysis begins with an acknowledgment that

modern American federalism’s “foundation in the Constitution

and statutory law is relatively weak” and “surprisingly frag-

ile.” That foundation relies, to a great degree, on three ele-

ments, all of which are being challenged. The first element is

the federal intergovernmental grant system, which Merriman

describes as “a negotiated arrangement arising from material

inducements to cooperation,” and which is being challenged

by some states rejecting federal dollars in favor of political

principles. The second element is “bipartisan support for a

large national government,” which has now “proceeded as far

as [that] implicit bipartisan consensus allowed.” The final ele-

ment is the judiciary’s 20th century “deference to the execu-

tive” now being challenged by state Attorneys General and a

suspicious Supreme Court. Consequently, Merriman con-

cludes, the present form of American government should not

be treated as inevitable.

The state Republican officials’ challenge to federal poli-

cies erupted during the Obama Administration, but it was

three decades in the making. Its roots rest in state Attorneys’

General growing capacity, which stems from three primary

sources: Congress authorizing the states to challenge admin-

istrative agencies’ administrative decisions (beginning in the

1970s); the Supreme Court’s increasing skepticism toward

federal administrative agencies’ discretionary claims (first

expressed during the Bush Administration); and significant

groundwork laid by conservative organizations (such as the

Federalist Society) who shifted sympathy in the federal judi-

ciary away from agency discretion and developed many of

the legal arguments and strategies states used to challenge

undesirable federal policies. In addition, state Attorneys’

General legal successes (e.g., against big tobacco) increased

the resources, experience, reputation, and prestige of the

state Attorneys General. Once Republican officeholders won

a significant share of state Attorneys General seats, the pieces

were in place for them to challenge federal policies. The Tea

Party was more catalyst than cause.

The best-known tool state Republican officials developed to

challenge federal policy is lawsuits. This strategy rests on a judi-

cial decision that rejected a Bush Administration’s Environmental

Protection Agency (EPA) decision (Massachusetts v. EPA,

2007), and granted states the privilege of “special solicitude”

allowing them standing to sue federal administrative agencies

where other groups were denied. Republican state officials used

this privilege and growing judicial skepticism about federal

agencies’ discretion to challenge federal policies in the courts.

Coordinating with other friendly states, Republican state

Attorneys General sued in multiple federal district courts hop-

ing for either a favorable ruling or conflicting rulings that would

elevate the case to the Supreme Court.

Republican state officials also claimed “administrative

interests” to adopt novel policies and new positive rights that

contradict and challenge federal policies. Examples of these

include state immigration enforcement policies, right-to-try

laws, and the right to a secret ballot (even in union elections).

Despite no landmark ruling or major shift in how judges

approach the law, these strategies achieved remarkable suc-

cess challenging federal policy.

Republican state officials used many traditional means to

obstruct and delay the implementation of federal policy, but

they also refused large sums of federal money and created

interstate compacts to facilitate their opposition to federal

policies. Interstate compacts have yet to produce significant

resistance to federal policy, but they possess potential as a

fundamental and powerful workhorse in the intergovernmen-

tal system. Their success, however, relies on a complacent

Congress, because Congress has the constitutional authority

to reject interstate compacts.

The chapter on “voter restriction laws” examines

Republican-led states’ voter laws and their likely conse-

quences. Although unintended, this chapter provides excellent

background for understanding the Supreme Court’s 2019

majority decision to abstain from partisan gerrymandering

cases (Rucho et al. v. Common Cause et al.). The chapter

includes a thoughtful review of whether these laws prevent

legitimate voters from exercising their right to vote, repeatedly

qualifying that the laws “may” or “likely” prevent legitimate

voters from exercising that constitutional right. However, the

chapter should now be supplemented with new studies that

both challenge and support these claims. One oversight is that

the chapter fails to note that the Constitution gives Congress

the authority to alter state regulations governing the time,

manner, and place of federal officials’ elections, thereby pro-

viding another potential check on state election laws.

The data for this book come largely from public docu-

ments or open records requests. Merriman notes that he

intended to interview state officials studied in this book, but

he found that he could get the desired information through