Our federalism(s).

Author:Gerken, Heather K.

TABLE OF CONTENTS INTRODUCTION I. MAPPING FEDERALISM DEBATES A. Sovereignty, Process Federalism, and the Exit Option B. Cooperative Federalism and the Power of the Servant C. Federalism(s) in Practice II. WHY PLURALISM MATTERS A. Forms of State Power: Substitutes or Complements? B. The Neglect of Cooperative and Uncooperative Federalism 1. Context, Not Contests CONCLUSION INTRODUCTION

Like all academics, federalism scholars typically divide into camps. Some favor state sovereignty; others favor state autonomy. Some insist that states require formal, judicially enforceable protections against federal intrusion; others favor the informal protections afforded by the political process. Some favor cooperative federalism; others are not even sure that cooperative regimes can properly be called federalism. Scholars even divide as to the source of state power in its ongoing competition with the national government. Some imagine states occupying a separate sphere from the federal government. (1) Others assume that some level of state-federal integration is not just inevitable but healthy. Still others imagine that it is useful to have states serve as fully integrated administrative units within the federal system.

When scholars write about these debates, they often write as if we must choose between these different accounts of federalism--that we need one theory to rule them all (with apologies to Tolkien). It is not surprising that federalism scholarship usually rests on this assumption. Academics mostly write about the case law. And in a given case, one usually does have to make a choice between one theory or another. (2)

In the legislative and administrative arenas, however, our choices are far more varied. We need not hew exclusively to one vision of federalism. We can choose all of them at once. And we do. Every flavor of federalism can be found somewhere in our system. Institutional structures and interactions vary dramatically from domain to domain, program to program. Substantial variegation can be found within the same statutory scheme. (3) Indeed, even in the judicial context, we can--and do--choose more than one vision of federalism. "Our Federalism," (4) in short, contains multitudes. It would be more accurate to call it "Our Federalism(s)." (5)

It would be useful if federalism debates were more attentive to the fact that there are many federalisms, not one. In this Article, I identify three main reasons why federalism debates would improve if we paid more attention to federalism's many facets. First, federalism debates have an all-or-nothing quality to them, as if different accounts of federalism are mutually exclusive. Arguments typically rest on the assumption that different forms of state power are substitutes for one another. As a result, scholars have largely neglected the possibility that these forms of state power can also be complements. Sovereignty can be leveraged to give states more power within the national policy-making process. States' status as administrative insiders can help them preserve their power outside of national policymaking. It would be useful if scholars were more attentive to the fact that the questions federalism raises need not involve an either/or answer. Often they will involve a both/and.

Second, if we paid more attention to the many forms state power can take, we would find there is a good deal more to say about federalism doctrine and theory. The dominance of the sovereignty and process federalism accounts--both of which endorse a markedly similar view of state power--has led constitutional theory to neglect the huge swaths of federalism in which the states and federal government regulate together, with the states carrying out national policy. At present, constitutional theory lacks the tools necessary to analyze these cooperative federal regimes. But although there is a great deal of room to write in these areas, scholars continue to rehearse the same, tired debates over sovereignty and process federalism that have dominated the field for decades.

Finally, greater scholarly emphasis on the many facets of federalism would help lower the stakes in ongoing debates. Although scholars often write as if we require one theory to rule them all, it is hard to believe they really mean it. Federalism debates are best understood not as disagreements over which model to choose but as disputes over how to strike the right balance between different types of institutional arrangements. Such debates, however, can only be hashed out in context--domain by domain, policymaking arena by policymaking arena. Generic calls for one approach or another simply cannot do the trick. Shifting the debate along these lines would lead us to focus our attention on a more productive set of questions. We would spend more of our time analyzing which flavor of federalism best fits a given context and less time pushing a single theory.

Part I of this Article maps the extant scholarship by considering what scholars believe to be the source of state power in a federal scheme. It discusses the three main accounts of state power put forward by scholars: the de jure autonomy associated with the sovereignty account; the de facto autonomy associated with process federalism; and the power of the servant, which is the best way to conceptualize state power in cooperative federal regimes. This Part concludes by noting that, as a purely descriptive matter, we see plenty of examples of each form of state power, thus belying the notion that we need to adopt one theory to rule them all. This is true not just of the legislative and administrative arenas but even of the judicial one. Part II identifies the reasons why pluralism matters--why it would be useful if federalism debates explicitly acknowledged the existence of "Our Federalism(s)" rather than continuing to fight about which theory should dominate "Our Federalism."


    Federalism theory has long exhibited a healthy pluralism with regard to the ends federalism promotes. Federalism is thought to promote choice, competition, experimentation, and the diffusion of power. The Supreme Court reels off these arguments as easily as scholars do. (6)

    The divide in federalism debates centers on the means necessary to achieve those ends. States cannot promote choice or check an overweening national government if they lack power. But federalism theory contains at least three distinct accounts about what form of power states require to fulfill their role in a federalist scheme. (7)

    1. Sovereignty, Process Federalism, and the Exit Option

      One major view of state power is conventionally labeled a sovereignty account. Sovereignty, of course, has many meanings in many fields. Its definition varies even within federalism theory itself. As a general matter, though, champions of sovereignty believe that federalism will succeed only if states enjoy the power to rule without interference in a policymaking domain of their own. (8) They thus typically imagine the state and federal governments occupying separate regulatory spheres, with the state setting its own policies separate and apart from the center. Proponents of sovereignty also believe that courts ought to take a formal role in protecting these regulatory spheres.

      Sovereignty's main opponents are the process federalists. They argue that federalism depends on preserving the de facto autonomy of the states, not the de jure autonomy afforded by sovereignty. Process federalists thus look not to the courts but to politics, tradition, inertia, and interdependence as the guarantors of state power. Consider Larry Kramer's seminal account. In resuscitating the "political safeguards of federalism," he argues that states can protect themselves from federal intrusion without judicial assistance. (9) He points out, for example, that the integration of the state and national parties ensures that local politicians have access to, and leverage over, national politicians. (10) So, too, Kramer argues that the important role states play in administering federal policy ensures that the national government cannot take state interests for granted. (11) The formal protections afforded by sovereignty, in Kramer's view, are unnecessary to preserve state power. (12)

      Although the sovereignty account and process federalism are typically cast in opposition to one another, in fact there are deep continuities between them. Process federalists look to politics and interdependence as leverage points for protecting states from national interference, but they nonetheless conceive of power in roughly the same way that champions of sovereignty do. The de facto autonomy lauded by process federalists is markedly like the de jure autonomy lauded by sovereignty's champions. Both envision state power as the ability to preside over one's own empire rather than administering someone else's. (13) Kramer, for instance, argues that the goal of process federalism is to "preserve the regulatory authority of state and local institutions to legislate policy choices." (14) So, too, Ernest Young, another leading process federalist, insists that "the independent policy-making authority of state governments ... is the critical variable" for federalism. (15)

      Similarly, though process federalists resist the separate spheres approach so often put forward by champions of sovereignty, a similar conception of state power undergirds their work. Members of both camps share the view that states should have control over "their" policies. (16) For instance, some process federalists argue, as does Larry Kramer, that "[a]lthough it's no longer possible to maintain a fixed domain of exclusive state jurisdiction it's not necessarily impossible to maintain a fluid one." (17) Many other process federalists suggest that the key to preserving state power is to enforce restrictions on federal power. (18) By limiting what the federal government can do, this strategy leaves space for the states...

To continue reading