Negotiating conflict through federalism: institutional and popular perspectives.

• Author: Rodriguez, Cristina M.
• Position: Federalism as the New Nationalism

INTRODUCTION

The question of what value federalism generates has no single answer, nor does its corollary of how the system ought to be structured to maximize its virtues. The value generated by decentralized decision-making will appear different depending on the perspective adopted when considering the matter, as will the ideal design of inter-governmental relations. If we step inside the system itself and adopt an institutionalist point of view, the answers will reflect the interests of the system's actors and take on partisan and bureaucratic characteristics. If we try to answer the questions externally, either from a popular or scholarly vantage point, the answers will become more ideological and normative. The question of federalism's value breaks down into several inquiries: Of what value is it to the central government to have state and local governments to contend with? Of what value is it to state and local governments to be embedded in a system with a strong central government and myriad competing governments? Of what value is it to the people to have government power split and decentralized?

A reader reasonably could conclude that the first two questions may matter to a descriptive account of our federalism, but only the third perspective--the popular one--truly matters when debating the merits of the system. But the institutional perspectives convey important information about how the system functions, which in turn helps reveal the possibilities for governance the system creates. In this essay, I adopt each of the three perspectives outlined above in order to develop a complete sense of these possibilities. In so doing, I give content to one of the central insights of the work highlighted in this Feature-that federalism does not consist of a fixed set of relationships. Instead, its parameters are subject to ongoing negotiation by the players in the system, according to the advantages each might accrue from a particular set of relations. (1) Understanding the substance of these negotiations should ultimately lay the groundwork for a normative account of inter-governmental relations.

None of the actors I name is unitary, of course, which makes defining any of their perspectives on a given federalism controversy, not to mention the system itself, tricky. The federal government consists of political and bureaucratic actors arrayed into different branches and representative of different political parties. The sub-federal consists of myriad state and local governments with varying degrees of autonomy from one another and from the center. And the popular perspective may be the most variegated and amorphous; it consists of a large and diverse assortment of interests woven together by economic, social, and cultural affiliations and through interest groups and networks such as political parties.

And yet, if we consider each of these actors in relation to one another, a distinct perspective on federalism's value can be attributed to each. For the federal government, the virtues of the system include having states and localities to enlist in the expansion of its capacities, as well as having other governments to take the lead in various regulatory domains, for political and practical reasons. At the same time, pulling in the opposite direction will be the federal government's interest in maintaining control (though not necessarily dominance) over the domains to which its powers extend. The federal interest can thus be served by managed diversity, rather than uniformity. State and local officials and entities will certainly have an interest in collaborating with the federal government and taking advantage of federal largesse, whether to advance their own or their parties' political ambitions, or to help resolve the governance problems they face. But the decisional independence the federalist system affords will often be of political and policy value, too, and will be worth fighting to preserve, even when it places them at odds with the potential federal benefactor. From the popular point of view, federalism's value will be harder to pinpoint, because the people themselves are not a bureaucratic institution set up in relief to other institutions. Instead, they consist of a sprawling agglomeration of diverse identities and interests. Whether the federal or the sub-federal should address a particular matter may depend on how the form of regulation maps onto people's substantive preferences. In a more high-minded sense, the virtues of the system for the people will stem from the extent to which it advances the purposes of government.

Though pursuit of their interests by each player may often lead to conflict, particularly over which institutions should control any given policy domain, I argue that the value of the system common to all of its participants is the framework it creates for the ongoing negotiation of disagreements large and small--a value that requires regular attention by all participants to the integrity of federalism's institutions. It is in this sense that I think federalism constitutes a framework for national integration, in the spirit of this Feature. It creates a multiplicity of institutions with lawmaking power through which to develop national consensus, while establishing a system of government that allows for meaningful expressions of disagreement when consensus fractures or proves elusive-a value that transcends perspective.

In what follows, I attempt to establish these conclusions by considering how the negotiations required by federalism have structured our national debates over a number of pressing social welfare issues, including immigration, marriage equality, drug policy, education and health care reform, and law enforcement. I focus on how these debates play out in what I call the discretionary spaces of federalism, which consist of the policy conversations and bureaucratic negotiations that actors within the system must have to figure out how to interact with one another both vertically and horizontally. Indeed, within existing legal constraints, state and local actors will have considerable room to maneuver, and the federal government considerable discretion to refrain from taking preemptive action. (2) highlight questions of administration and enforcement, because it is in these domains that the system's actors construct one another's powers and interests on an ongoing basis, based on the value they seek to derive from the system. In these discretionary spaces, winners" must sometimes emerge from discrete conflicts, whether through judicial resolution or political concession, and the parameters set by courts and Congress obviously define the terrain of negotiation. But the intergovernmental relationships and overlapping political communities the system creates are neither locked in zero-sum competition nor bound by fixed rules of engagement, precisely what makes federalism productive regardless of perspective.

The question then becomes, what follows from this conception of federalism, according to which the value generated by federalism varies depending on who's speaking. The talk of negotiation and the corresponding positionalist perspective on federalism work against the development of totalizing theories about how best to allocate power. It becomes difficult to move from describing the functions federalism performs in different domains to an overarching normative structural theory. As Heather Gerken has argued, many different federalisms exist. (3) Even if we can identify a proper conception of federalism as a matter of original understanding, or of Supreme Court doctrine, that conception still will depend on the regulatory domain in question--the Court's immigration federalism looks quite different from its economic federalism. (4) More importantly, when we step into the discretionary spaces I describe, the look of the system will depend on the particular choices made by the players in question--choices that will depend on the advantages both the federal and the local perceive from either asserting or declining to use their power, which in turn will be motivated by political and partisan commitments. (5)

I ultimately believe we can still express proceduralist preferences for decentralized decision-making, regardless of the perspective adopted, based on observations about the value over time of such a structure. Elsewhere, I explore how decentralization can help simultaneously shape political consensus and channel ideological diversity. (6) Here, I focus on the dynamics of negotiation in order to understand better the possibilities federalism creates for the players in the system. This conclusion does not preclude acknowledging that national institutions should be strong and sometimes cut off decentralized debate in the interest of protecting a national norm or the public good, or assert centralized authority to overcome regulatory dysfunctions. (7) But, again, it does point in the direction of developing rules of engagement that keep federalism's institutions robust.

This positionalist inquiry draws on my federalism-related work to date and dovetails with the approaches to federalism highlighted by the contributors to this Feature in at least two ways. First, in my work on immigration federalism, my central preoccupation has been to figure out what purposes state and local activity might serve in a traditionally federal domain, as well as to understand why state and local officials have claimed authority to act--whether those reasons differ from the concerns that motivate the federal government's regulation. (8) I have been concerned less with the identification and delineation of the scope of federal versus state power and more with understanding immigration federalism as an example of how the overlapping political communities in our body politic negotiate with one another to address matters of national concern. (9) My efforts to understand the motivations...