From sovereignty and process to administration and politics: the afterlife of American federalism.

• Author: Bulman-Pozen, Jessica
• Position: Federalism as the New Nationalism

INTRODUCTION

Edward Corwin famously announced the passing of dual federalism in February of 1950. In the wake of the Great Depression, the New Deal, and two world wars, he argued that the federal system had "shifted base in the direction of a consolidated national power" and wondered whether "the constituent States of the System [could] be saved for any useful purpose." (1)

Federalism scholars have offered a variety of answers to his question. For some, the imperative is to revive dual federalism, a commitment to judicially enforced separate spheres of state and federal authority. (2) But for many more, Corwin's words have been read not as a eulogy but as a challenge, a call to consider how federalism might survive without clearly delineated domains of state and federal authority. If the "standard view held by students of law and politics is that the history of American federalism has been an inexorable series of moves in which national power has displaced state and local power," (3) many of the contrarians who compose the federalism academy have found within the very moves taken to aggrandize national power-in particular, the rise of the administrative state and the rise of national political parties-the keys to federalism's longevity. Dual federalism made way for process federalism, (4) which has in turn recast administration and party politics as channels through which state power is preserved. The administrative state and the two major political parties have been reimagined as guardians, rather than slayers, of American federalism.

This embrace of administration and politics has been productive but incomplete. Even as the literature has ceased to insist on judicially enforced, clearly defined spheres of state and federal authority, it has clung to a dualist vision of state-federal separation. Dual federalism may be dead, but its focus on autonomous state governance and distinctive state interests--on separation--lives on. What has changed is simply the means of protecting these ends. In our leading contemporary federalism narratives, integration paradoxically yields separation: state actors use their connections to federal politicians and administrators to safeguard state autonomy and to advance particularistic state interests.

But integration yields integration, not separation. Taking administration and partisanship seriously means we must acknowledge a certain incoherence to invoking state governance and interests in opposition to federal governance and interests. Instead, state and federal governance and interests are deeply intertwined and, in many cases, indistinguishable. The state and federal governments together produce national governance in the service of various national interests.

First, in our most substantial federal statutory schemes, states act as co-administrators and even co-legislatures, complementing and competing with the President and Congress. Insisting on an autonomous realm of state action neglects this important aspect of today's federalism and also leads us to overlook how states affect the federal government. As administrators and authors of federal law, states alter the roles and relationships of federal political and bureaucratic actors and amplify competition across and within the branches of the federal government. We cannot understand today's federalism without considering the separation of powers, and we likewise cannot understand the separation of powers without considering federalism. Our federal government is really a federalist government.

Second, and extending beyond state administration of federal law, states participate in political controversies that are national in scope. They serve as staging grounds for competition between our two major parties and for a variety of networked interests seeking to translate political commitments into law. Insisting on distinctive state interests neglects this important aspect of today's federalism and also leads us to overlook how federalism facilitates national political conflict. By advancing a Republican or Democratic agenda, or by offering a toehold for networked interests to further their causes through direct democracy, states engage in political struggles on behalf of people both inside and outside their borders, and they are watched by Americans nationwide. National political conflict is drawn on the canvas of the states.

To some, this may sound like nationalism, and not federalism. But it is not nationalism as centralization and homogenization. Focusing on the states, federalism scholarship tends to conceptualize the federal government as unified and to treat the dominant voice in the federal government as the voice of a single national interest. Our federal government and our nation are irreducibly multifarious, however, and today's federalism instantiates this national diversity.

Understanding "federalism as the new nationalism" (5) thus complicates both the "federalism" and the "nationalism" sides of the equation. The phrase should be taken to refer to a dynamic process of coevolution rather than the colonization of states by the federal government, on the one hand, or the preservation of federalism as state-federal separation, on the other. While existing accounts locate federalism in state autonomy and distinctive interests and proclaim it either dead or alive, this Essay instead locates federalism in the legally and politically generative interaction among the state and federal governments and the American people. Regarding the state and federal governments as interdependent sites of national governance, it tells a story not about the life or death of federalism as a rival to nationalism, but about federalism's afterlife as a form of nationalism.

Part I critiques the federalism literature's dominant account of integrationas-separation. Part II considers state-federal integration in the administrative realm, while Part III considers such integration with respect to partisan politics and direct democracy. The Essay calls for an embrace of administration and politics as transformative, rather than preservative, of American federalism. Attending to how states pluralize our national life offers the most plausible account of their contemporary vitality.

1. THE DEATH AND LIFE OF AMERICAN FEDERALISM

Federalism scholarship in the latter half of the twentieth century and the beginning of the twenty-first has largely resisted the easy narrative of federal aggrandizement at the expense of the states. Acknowledging that the federal government has assumed regulatory authority over ever more domains, the literature has argued that this signifies not federalism's demise but rather a change in the mechanisms that safeguard the place of states in our system. A variety of process federalisms have recast forces traditionally envisioned as threats to a robust federalism as its guardians: Congress and the President, the Democratic and Republican parties, and the administrative state have each, in turn, been given a new role. But even as these recastings shed dual federalism's insistence on judicial review and clearly delineated spheres of state and federal authority, they retain its core commitment to state autonomy and distinctive interests. Novel forms of state-federal integration are thus treated as means of preserving state-federal separation: the integration of state and federal actors safeguards the separation of state and federal action.

1. Congress and the President, Political Parties, and the Administrative State: Recasting Threats

   Just as Corwin announced dual federalism's passing, a new wave of scholarship began to proclaim federalism alive and well. The key, adherents of process federalism insisted, was to look beyond a judicially enforced model of state sovereignty to the protections accorded states through their role in the composition and selection of the federal government. (6) The political safeguards that Herbert Wechsler described in 1954 were not newly discovered--as Wechsler acknowledged, James Madison had sketched them nearly two centuries earlier (7) -but they assumed new urgency as critics worried about the vitality of American federalism.

   Wechsler's main conceptual move was to re-envision a looming threat to state power as a safeguard. On the dual federalist account, Congress and the President were precisely what the states had to fear: these federal actors would overreach and impinge on state sovereignty absent a judicial check; with the demise of that check, Americans were destined to inhabit a world of unconstrained federal power. Process federalism first neutralized the threat. In Wechsler's view, state law was the default and those who favored federal intervention bore the burden of persuasion, ensuring federal law remained interstitial. He then went further: the branches of the federal government could be counted on affirmatively to preserve state autonomy because the states selected their members. The formal state role in choosing Senators and, to a lesser extent, members of the House through districting and the President through the Electoral College, he argued, gave federal politicians incentives to avoid encroaching "on the domain of the states." (8) While for Corwin, the aggrandizement of congressional and presidential power threatened federalism's survival, for Wechsler and his followers, congressional and presidential power would themselves be marshaled in support of state autonomy. (9)

   By the end of the twentieth century, notwithstanding its star turn before the Supreme Court, (10) Wechsler's formal process federalism had lost some of its luster. One problem, critics pointed out, was that the constitutional structures he emphasized were already on their last legs when he wrote. Senators had long been chosen directly by the people; state legislative control over districting for the House was curtailed by the reapportionment cases of the 1960s; and even Wechsler couldn't muster much...