What Does Federalism Make Possible?

The Federal Government Is Gridlocked

A successful use of the filibuster to block voting rights legislation in the Senate today is a reminder of a long standing, and intractable problem. The legislative process in the United States is deeply gridlocked. 

It hasn't bee possible to pass legislation in the United States without bipartisan support since sometime in the 1970s when I was in elementary school learning cursive writing, even when, as now, a single political party controls the U.S. House of Representatives, the U.S. Senate, and the Presidency.

As the partisan divide between Democrats and Republicans in our two party system has deepened, and as the Republican party has shown a willingness to block the legislative process simply to deny Democrats a legislative achievement even when many Republicans don't substantively oppose Democratic policy proposals in many cases, this gridlock prevents most kinds of policy reforms worth caring about.

The party that controls Congress and the Presidency isn't entirely without options. Congress has already abolished the filibuster with respect to Presidential nominations in almost all cases, and with respect to a small number of must pass budget bills. 

The President can use existing legislative authority to issue regulations, but as a 6-3 U.S. Supreme Court ruling in the past week invalidating an OSHA regulation mandating COVID vaccination for employees of large employers (with legal reasoning that even conservative legal pundits seriously criticized for both inaccuracy and disregard of basic principles for equitable relief) illustrates, the holdover of ideological judges in our system of political judicial appointments limits that option significantly.

Similarly, while the President, in theory, has wide discretion regarding how to direct federal government employees to enforce laws, rogue federal court judges, including one in Texas, have, for example, prevented the President from exercising that authority to reverse Trump administration practices for immigration enforcement and to allow soldiers to disregard direct orders from their superiors regarding COVID vaccination, on legal rationales that are dubious at best but which the 6-3 ultraconservative majority on the U.S. Supreme Court has allowed to persist.

Indeed, the U.S. Supreme Court hasn't even upheld settled binding precedents that have stood for more than four decades on abortion to enjoin clearly unconstitutional Texas legislation on the subject (specifically designed to evade SCOTUS review from a conservative controlled court). Instead, it has allowed that unconstitutional law to remain enforceable and on the books for many months (contrary to all prior practice) and has strongly signaled (contrary to express representations made in confirmation hearings to the contrary) that Roe v. Wade will be overruled this summer in some matter or another.

Congress could expand the size of the U.S. Supreme Court to appoint more friendly justices who aren't grossly outside of the legal mainstream, if the unwillingness of two of the Democratic caucuses own Senators weren't dedicated to preserving Republican power by retaining the filibuster, an issue that will probably cost of them their seat in a primary challenge in the next election. But, the bottom line is that President Biden and his democratic majorities in both houses of Congress still have remarkably little power in the status quo. 

Midterm elections in 2024, moreover, look much more likely to cost Democrats even formal control of Congress, than to strengthen their hand.

All of this prelude, however, just goes to show that for the foreseeable future, most policy changes will have to emerge at the state and local level, especially if they are perceived as partisan or provide any colorable basis for courts to block the new policies, however far fetched that basis may be been when the U.S. Supreme Court was more balanced.

What Does Federalism Make Possible?

There are many U.S. states that are controlled by Democrats without archaic limitations like those imposed by the power that the U.S. Senate affords to minorities, especially rural ones. And, many U.S. states are similarly controlled by Republicans without strong political barriers to majoritarian policy-making. Likewise, many local governments are under the firm partisan control of one party or the other.

But even though, in constitutional theory, states have basically plenary power to adopt legislation on almost any subject, in practice, state policy makers operate in a highly constrained environment.

The preemptive effects of federal laws, treaties and regulations, the federal constitution, state constitutions, and the irresistible incentives created by federally funded state government programs, all profoundly limit state and local legislative discretion. State and local governments also generally have much less freedom to tax and spend than the federal government.

State policy-makers also face constraints unique to subordinate lawmakers in a federal system. 

One is the "race to the bottom" issue that, for example, causes the law governing the internal affairs of corporations to be governed by the law of the state where a firm is incorporated, even though it is allowed to operate in any U.S. state. So, states compete to offer the people who choose which state to incorporate firms laws that they favor.

The other is that it is difficult for state and local governments to be generous with the public in an economic sense if this happens in a context where non-residents of the state can take advantage of the state offered boon without undue difficulty.

For example, if Colorado were to allow anyone to attend its public college and universities tuition-free, which is a widely adopted policy that can make sense in a unitary state, parents from other states may flood Colorado with college students despite making no contribution to the Colorado tax base that would finance tuition-free higher education.

This doesn't mean that state and local policy-makers are powerless.

"Laboratory of democracy" type innovations are far more rare that political theorists would have us believe. But often it takes just one innovative state that is on the right track, to demonstrate that often invoked parades of horribles associated with a policy don't actually happen, to open the flood gates of imitators in many other like minded states. 

For example, Colorado's success in legalizing medical and then recreational marijuana under state law has causes many other states, and even whole countries, to follow its example. Now, a majority of states, by population at least, have legalized marijuana at the state level and full legalization seems inevitable in the not too distant future.

Even within Colorado, innovation in decriminalizing marijuana at the level of the City and County of Denver was pivotal in getting the rest of the state to follow suit, and for the industry to later launch itself with local government support.

And, once something does work at the state and local level and a new policy really catches on, it is routinely copied by a large supermajority of states. 

This doesn't happen every time: the procedural provisions related to probate administration of the Uniform Probate Code, for example, hasn't been widely adopted or imitated, even though it has been a smashing success in practice.

But, it happens often enough, that this back door and gradual state by state alternative to federal legislations in a policy area that isn't subject to exclusive federal government control, is frequently an attractive alternative to federal legislation that also conveniently keeps most litigation of these state adopted policies in state courts subject only to U.S. Supreme Court review from final decisions of state supreme courts.

Even though it is partially a historical accident, there are many areas of law where federal legislation and/or federal constitution court rulings preclude state and local policy-making.

As much as they would like to, state and local governments have little or no power to regulate immigration or arbitration or bankruptcy law. They have very little say in military policy-making and foreign affairs. They are economically locked into the Medicaid program (including its nursing home program and childhood health insurance program CHIP), and to federal mandates that are part of welfare aid to how child support must be handled in the state. They can't establish their own currencies with independent monetary policies and interest rates. They are economically locked into the federal highway system, and to policies on how higher educational institutions are administered governed by federal law. Federal constitutional law largely mandates gender neutrality in policy-making. Local governments have to conform to state mandates as well, which leaves them even more constrained.

So, while state and local government is indeed one of the main places where policies favored by one major political party and opposed by the other can be enacted, that authority is highly constrained in practice, most of time. Finding opportunities that aren't otherwise blocked to adopt state and local level policies is a highly challenging endeavor, despite being the best game in town for idealists favoring policy reforms at this point in history.