Do Citizens Care about Federalism? An Experimental Test

• Date: 01 November 2007
• Author: Cindy D. Kam,Robert A. Mikos
• DOI: http://doi.org/10.1111/j.1740-1461.2007.00100.x
• Published date: 01 November 2007

Do Citizens Care about Federalism?

An Experimental Test

Cindy D. Kam and Robert A. Mikos*

The ongoing debate over the political safeguards of federalism has essentially

ignored the role that citizens might play in restraining federal power.

Scholars have assumed that citizens care only about policy outcomes and will

invariably support congressional legislation that satisfies their substantive

policy preferences, no matter the cost to state powers. Scholars thus typically

turn to institutions—the courts or institutional features of the political

process—to cabin congressional authority. We argue that ignoring citizens is

a mistake. We propose a new theory of the political safeguards of federalism

in which citizens help to safeguard state authority. We also test our theory

using evidence from a nationally representative survey experiment that

focuses on the timely issue of physician-assisted suicide. We find that citizens

are not single-mindedly interested in policy outcomes; trust in state govern-

ments and federalism beliefs, on the urging of political elites, reduce their

willingness to support a federal ban on physician-assisted suicide.

I. Introduction

In 1994, Oregon became the first—and only—state in the nation to allow

terminally ill patients to seek prescription drugs in order to hasten death

*Address correspondence to Robert A. Mikos, University of California, Davis, School of Law,

Davis, CA 95616; email: ramikos@ucdavis.edu. Kam is Assistant Professor of Political Science,

University of California, Davis; Mikos is Acting Professor of Law, University of California, Davis.

We thank participants at the September 2005 Annual Meeting of the American Political

Science Association, Washington, DC, the May 2005 Annual Meeting of the American Law and

Economics Association, New York University, and the October 2006 Conference on Empirical

Legal Studies, University of Texas, for helpful comments on earlier drafts of this article. Data

were collected by Time-Sharing Experiments for the Social Sciences, NSF Grant 0094964, Diana

C. Mutz and Arthur Lupia, Principal Investigators. We received useful feedback from Chris

Elmendorf, Bob Huckfeldt, Carlton Larson, Brian Sala, and Walt Stone. We are grateful to the

Institute for Governmental Affairs at the University of California, Davis for providing financial

support through the Faculty Seed Grant. Finally, we thank Botum Chhay, Kira King, Josh

Maxwell, Noelle Nasif, Emerald Nguyen, Carl Palmer, Jennifer Ramos, and David Touney for

valuable research assistance.

Journal of Empirical Legal Studies

Volume 4, Issue 3, 589–624, November 2007

©2007, Copyright the Authors

Journal compilation ©2007, Cornell Law School and Blackwell Publishing, Inc.

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(so-called physician-assisted suicide).1Congressional leaders responded with

repeated but unsuccessful attempts to pass federal legislation that would

trump Oregon’s Death with Dignity Act and prevent any other state from

following in Oregon’s footsteps.2Unfazed by Congress’s failure to act, in

2001, Attorney General John Ashcroft asserted authority under the decades-

old Controlled Substances Act (CSA) to issue a ruling that, if upheld, would

effectively put an end to physician-assisted suicide throughout the nation.3

Ashcroft’s actions set in motion a chain of events that ground to a momen-

tary halt on January 17, 2006, when the U.S. Supreme Court, in Gonzales v.

Oregon, ruled that the CSA did not give the Attorney General authority to ban

physician-assisted suicide.4

In his majority opinion for the Court, Justice Kennedy characterized

the Attorney General’s actions as demonstrating “a radical shift of authority

from the States to the Federal Government to define general standards of

medical practice in every locality. The text and structure of the CSA did not

have this far-reaching intent to alter the federal-state balance and the con-

gressional role in maintaining it.”5The dispute between the State of Oregon

and the Attorney General at its core hinges on federalism: in this case, it is a

battle between the federal and state governments for control over contro-

versial medical practices.

The Gonzales Court did not speak to whether the federal government

could ban assisted suicide. It merely held that Congress had not yet passed a

statute that clearly expressed the intent to displace state laws on the subject.

Almost immediately after the Court issued its ruling, political pundits began

to speculate about how opponents of physician-assisted suicide would use

Congress to impose their morality on the State of Oregon—and any other

states considering the issue. For example, a January 19, 2006 opinion piece

in the New York Times sees the ruling as a harbinger of federally imposed

1The Death with Dignity Act is codified at Or. Rev. Stat. §§ 127.800–127.897.

2Lethal Drug Abuse Prevention Act of 1998, H.R. 4006, 105th Cong. (1998); Pain Relief

Promotion Act of 1999, H.R. 2260, 106th Cong. (1999).

366 Fed. Reg. 56,607 (Nov. 9, 2001) (“prescribing, dispensing, or administering federally con-

trolled substances to assist suicide violates the Controlled Substances Act...regardless of

whether state law authorizes or permits such conduct”).

4126 S. Ct. 904, 925 (2006).

5Id.

590 Kam and Mikos

morality: “Congressional conservatives are already vowing to push through a

law barring assisted suicide. After the sorry display of pandering during the

Terri Schiavo tragedy, no one can bet that they won’t succeed this time.”6

This type of dire warning gives the sense that the Court failed to

adequately protect the states’ traditional authority over medical care, leaving

that authority to the mercy of Congress and powerful national interest

groups. But other legal scholars say there is no need for the Court to police

the boundaries of federal power vis-à-vis the states. The political safeguards

approach claims that institutional features of the national political system,

such as the structure of Congress and the political parties, adequately protect

state prerogatives.7Notably, however, proponents of the political safeguards

approach—and their critics—overlook the role that ordinary citizens might

play in safeguarding state authority. Citizens are portrayed as cognitive

misers, who are rationally ignorant of political procedures and whose politi-

cal interests are limited exclusively to policy outcomes. The conventional

wisdom suggests that citizens, being single-mindedly interested in policy

outcomes, would therefore support any congressional action that comports

with their policy preferences.

We argue that citizens may not be so eager to embrace federal legisla-

tive action. We develop a new theory of political safeguards that entertains

the notion that ordinary citizens may play an important role in limiting the

use of federal power.8Our theory rests on two constructs: trust in govern-

ment and federalism beliefs. First, citizens may protect state authority

because they trust their state governments more than they trust the federal

government.9Second, citizens may protect state prerogatives because they

value federalism, for both policy and process reasons. Although some schol-

6The Assisted Suicide Decision, N.Y. Times, Jan. 19, 2006, at A22 (editorial).

7The three most often-cited proponents of the political safeguards of federalism include: Jesse

H. Choper, Judicial Review and the National Political Process (1980); Larry D. Kramer, Putting

the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000);

Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the

Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954).

8The theory and its implications for judicial review are developed more fully in Robert A. Mikos,

The Populist Safeguards of Federalism, 68 Ohio St. L.J. (forthcoming 2007).

9Todd E. Pettys, Competing for the People’s Affection: Federalism’s Forgotten Marketplace, 56

Vand. L. Rev. 329, 333 (2003) (suggesting that the people may grant states more regulatory

responsibility when states earn their “trust, confidence, allegiance, or loyalty”).

Do Citizens Care about Federalism? 591