The political safeguards of horizontal federalism.

• Author: Gerken, Heather K.
• Position: Introduction through III. The Affirmative Case for Spillovers A. The Source of the Problem: Division or Inertia? 3. The Costs of a Frictionless System: Undermining National Politics, p. 57-88

For decades, we have debated whether "political safeguards" preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state-federal tussles. No one has made such an argument about relations among the states, however, and the few scholars to have considered the question insist that such safeguards don't exist. This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism.

If you want to know what unites the burgeoning work on horizontal federalism and illuminates the hidden logic of its doctrine, you need know only one fact: lawyers hate spillovers. Whether it is a state's decision to license same-sex marriage or set high emissions standards or maintain lax gun-ownership rules, we worry when one state's regulations affect residents in another state. And just as most scholars aspire to prevent spillovers, most look to the courts to fix the problem.

The current state of the law and literature makes clear why no one has thought to develop a safeguards account of horizontal federalism to match the one that dominates debates over vertical federalism. Why bother with political safeguards if politics is the problem and the judiciary is the solution?

In this Article, we don't just question the consensus against spillovers but offer an affirmative account as to why much interstate conflict can or should be left to the free play of politics. Our argument emphasizes the democratic possibilities associated with spillovers and looks to vertical federalism as a model for thinking about how the states ought to interact with each other. Spillovers, after all, occur just as routinely between the state and federal government as they do between the states. State--federal friction, however, is understood to be both a problem and a valuable part of a well-functioning democracy. The same should be true of horizontal federalism. Our goal should not be to suppress friction but to harness it--to shut down damaging spillovers while allowing productive ones to run their course.

TABLE OF CONTENTS INTRODUCTION I. HORIZONTAL V. VERTICAL FEDERALISM: A BRIEF OVERVIEW II. THE CASE AGAINST SPILLOVERS A. The Costs of Spillovers 1. Spillovers and the National Economy 2. Spillovers and Democracy B. The Doctrine 1. The Supreme Court's Constitutional Cases 2. The Supreme Court's Statutory Cases C. Spillunders III. THE AFFIRMATIVE CASE FOR SPILLOVERS A. The Source of the Problem: Division or Inertia? 1. Classifying Spillovers 2. Balancing the Costs and Benefits 3. The Costs of a Frictionless System: Undermining National Politics 4. The Costs of the "Big Sort": Undermining State Politics B. The Solution to Inertia and Enclaves: Spillovers 1. Spillovers and the Problem of Inertia 2. Spillovers and the Problem of Enclaves C. The Lesson of Vertical Federalism: Harnessing Friction, Not Eliminating It IV. COUNTERARGUMENTS: OF SOVEREIGNTY AND COURTS A. The Sovereignty Camp B. Are Courts the Only Institution Capable of Safeguarding Horizontal Federalism? V. How Do the Political Safeguards Work in Practice? A. Are the Political Safeguards Working? B. What Are the Institutional Mechanisms for Safeguarding Horizontal Federalism? 1. Congress 2. Networks, NGOs, Political Parties, Interest Groups, and Private Institutions 3. Administrative Agencies 4. The Courts CONCLUSION INTRODUCTION

For decades, we have debated whether "political safeguards" preserve healthy relations between the states and the federal government and thus reduce or eliminate the need for judges to referee state-federal tussles. (1) No one has made a similar argument about relations among the states, however. To the contrary, the few scholars to have considered the question insist that such safeguards don't exist. (2) This Article takes the opposite view and lays down the intellectual foundations for the political safeguards of horizontal federalism.

If you read the U.S. Reports, you d probably miss that Our Federalism depends on relations among the states just as it depends on relations between the states and the federal government. (3) But while the vertical dimensions of federalism have generated countless paeans, courts and scholars have neglected federalism's horizontal dimensions.

We know how "Our (Vertical) Federalism" is supposed to work. Vertical federalism is thought to promote choice, foster competition, facilitate participation, enable experimentation, and ward off the national Leviathan. (4) That account lends order and coherence to an otherwise motley range of doctrinal questions, from preemption cases to the Spending Clause, from the regulation of interstate commerce to commandeering.

The same can't be said of "Our (Horizontal) Federalism." Courts, of course, routinely referee disputes between the states and their citizenries. But judges approach these cases seriatim, without an overarching account of how interstate relations are supposed to function. (5)

Until recently, the academy has been little different, with scholars confining their analyses to horizontal federalism's doctrinal silos. (6) But a handful of scholars have started to develop a transsubstantive account of horizontal federalism to match the one we routinely deploy for vertical federalism. (7) The literature is small, to be sure, especially when compared to its well-developed counterpart. But the work now shares a recognizable common core and has sorted itself into rough-and-ready intellectual camps. It is thus an appropriate moment to assess where that literature stands while offering our own take on where it should go next.

In our view, what's missing from the literature is an account of the political safeguards of horizontal federalism. And it's missing for reasons that go to the field's core commitments. Conflict is a recurring feature of both vertical and horizontal federalism. States intrude on each other's policymaking turf just as often as the state and federal governments regulate at cross-purposes. What divides the two fields is how we should respond to the ineluctable fact of friction. State-federal friction has long been understood to be both a problem and a valuable part of a well-functioning democracy. Vertical federalism's goal, then, has not been to eliminate friction but to harness it, allowing productive state--federal contests to play themselves out. Moreover, most vertical federalism scholars think that the political arena, not the judiciary, is the right forum for these fights. Political institutions, not the courts, represent the true "safeguards" of federalism. And by the "safeguards" of federalism, we refer not to the unreflective notion that politics is meant to safeguard state autonomy but to the correct formulation of the claim, which is that politics safeguards the type of state-federal relations necessary for our democracy to thrive. (8)

Scholars of horizontal federalism are much less sanguine about interstate conflict, and most of them look to the judiciary to referee state-to-state conflict. Congress, administrative agencies, political parties, networked interest groups--all are thought to safeguard vertical federalism. But even though those same institutions are available to mediate conflict among the states, there is no safeguards account to be found in horizontal federalism.

Developing a political-safeguards account for horizontal federalism, then, involves both excavation and construction. First, we must dig into the doctrine and scholarship in order to account for the puzzling differences between the fields. Second, once we've examined (and debunked) the arguments that have prevented scholars from even thinking to develop a safeguards account, we must build it.

As to the first task, it isn't hard to figure out why a safeguards account hasn't emerged in horizontal federalism. One idea unites the burgeoning scholarship and illuminates the hidden logic of much of its doctrine: lawyers hate spillovers. We've all absorbed the economists' lesson--some state activities generate positive externalities. But when law professors and judges think about spillovers, they typically focus on the ones that generate controversy--those that residents of the affected state view with dismay. For instance, when lax gun-ownership enforcement in Virginia increases the number of firearms in New York, we worry. When Massachusetts marries same-sex couples from states that don't recognize those marriages, we worry. When California's emissions standards trump the emissions standards of other states, we worry. When the Texas school board's efforts to move its curriculum in a socially conservative direction change textbooks for many states, we worry. We worry, in short, that state-generated spillovers cause interstate friction, generate inefficiencies, undermine the national marketplace, violate the autonomy of other states, and threaten democracy by preventing citizens of the affected state from choosing their own destinies. (9) 10 These worries so dominate the literature that we don't even have a name for the opposite but equally important notion--that some state policies should cross state lines. The debate over whether states should recognize same-sex couples married in other states, for instance, centers on when it is appropriate to give a state decision extraterritorial reach. But while there is a substantial body of research devoted to spillovers, we lack a name for what we term spillunders. (10)

Just as most scholars aspire to prevent spillovers, most look to the courts to fix the problem. That impulse finds substantial support in the Supreme Court's doctrine. The Court, for instance, has relied on the Commerce Clause and the Due Process Clause to strike down state laws that reach beyond state borders. Similarly, concerns about spillovers have influenced some of the Court's preemption decisions.

The current state of the law and literature...