The Contemporary Value of Federalism | John Dinan
Articles,  Blog

The Contemporary Value of Federalism | John Dinan

Thank you very much Andy and thank you to all
those who helped to organize this conference. What a terrific job and in
assembling this conference I’m very appreciative of the chance to be here. Well debates about federalism much like the
American federalist system itself are constantly evolving. Each generation
brings forth new critiques new questions about the American federal system and
whether it’s contributing to effective governance and it’s important for us to
consider these critiques of American federalism as I propose to do today and
it’s important for several reasons perhaps most important I’ll point this out
front center because if we ever concluded that the American federal
system was no longer contributing to effective governance we have it within
our power to shape or change that. After all in the founding here we consciously
chose deliberately chose to create a robust federal system. A federal government
of enumerated powers and state governments retaining a good deal of
autonomy. We chose that system but we could as easily chosen a different
system. We could have chosen a unitary system where the central government
would have plenary powers it might parcel out responsibilities to state
department however they might have been called as they saw fit. As I say we could
have chosen such a system and if we ever conclude deliberation that the federal
system is no longer contributing to effective government we could shape
change it and move it more in that direction through judicial
interpretation through constitutional amendment. In short my point is that this
discussion about the value of federalism is more than just theoretical interest, it’s also
a practical interest and practical consequences could follow from. So what are these critiques that have been voiced throughout American history about why the
federal system might not be seen as functioning effective and how those critiques changed through
the years? It’s one of my purposes today. But even more important to what extent of these
critiques of American federalism persuasive in arguing that federalism does
not contribute to effective governance. To what extent should we be persuaded by those
critiques or to what extent on the other hand might we conclude that these critiques false short and that federalism still contributes to affective governance. I will argue today for the latter
of those positions and I’ll do so by considering what I take to be the four
leading critiques of federalism. I will argue that two longstanding critiques of federalism is
associated with deprivation of minority rights and that federalism
leads to an unhealthy race to the bottom. I will argue that these two critiques have
less persuasiveness and less force now than they did as recently as several
decades ago. I’ll then consider a third critique which far from decreasing in
importance has probably increased importance. This critique is the critique that we
no longer have the support structure to maintain a robust federal system because
state political communities are no longer as meaningful as they once were. As I say this is serious critique I arguing in the end thats it’s unpersuasive in an increasingly polarized era especially. I’ll devote most of my time today to a fourth critique that I view as
the most potent the critiques. The critique and snapshot version here goes something like this in an age of increasing policy complexity and policy
responsibilities policy-making is impoverished by having the federal
government have to bargain with autonomous States in order to get policy
made leads to inefficiency it leads to obstruction. I will argue that this in the end is
also unpersuasive just as the other arguments and in fact argue to the contrary that
this turns out to be a major advantage of the federal system. That it allows for
and requires bargaining among federal and state governance. So this might end
to end it turned out to be an advantage of federalism. One final comment by way of preview and then I’ll actually delve into my remarks. I might argue then that this advantage that I’m claiming far from a critique it turns out to be an advantage might actually be added to our standard list of advantages of the federal system.
I take the standard list to come from Justice O’Conner’s opinion and in 1991
Supreme Court decision Gregory vs Ashcroft. This is the canonical list of
the benefits of the federal system. I want to quote it here because I want to set this out I believe that this is useful. So if I could just quote this Justice
O’Conner wrote and this is a quarter century ago this federal structure of joint
sovereigns reserves to the people of numerous advantages. It ensures a
decentralized government to be more sensitive to the diverse needs of a
heterogeneous society. It increases opportunity for citizen involvement and
democratic processes it allows for more innovation and experimentation in
government and it makes government more responsive by putting the states in
competition for mobile citizenry. Perhaps the principle benefit of our system is a
check on abuses of government power. That’s a quote from Justice O’Connor a quarter century ago.
I’d argue today that each of those advantages remains compelling and that we might even add to that list. So with that being said by way of my purpose today let me jump in. Let
me start as I say I want to take up four critiques and I want to analyze each of them. Let
me start with the first the first critique. The first critique was for many years the most powerful and rightly so. The first critique of federalism rested on the view
that state autonomy was inextricably bound up with maintenance of slavery and
racial segregation and this was seen as central piece of evidence against the
federal system. That it was seen as associate with deprivation rather than protection
of minority rights. As I say a very powerful argument but this critique well
we can’t completely put it to the side has less force today than it did certainly
a half century ago. It’s not only that the federal government to a series of congressional
action Supreme Court decision has assumed responsibility for protecting
civil and voting rights to a great extent but it’s also the case that
additional evidence has come to the floor about the way in which the federal
system contributes to the protection of minority rights as well. We’ve always had
evidence of this kind. Probably the leading evidence is women secure the right to
vote quicker on a broader basis in the American
system than they would of if you the U.S. had a unitary system rather than the federal
system that it had. But in recent decades additional evidence has come to the floor and
probably the leading piece of evidence same sex couples secured the right for
legal recognition of civil unions and marriage. Earlier and again on a broader
basis because the U.S. has a federal system than they would if we’d had a unitary system. Now this is a key reason I would say not the only reason but the key reason why liberals have softened their opposition to federalism in recent years.
To some extent this can be seen as an ideological demention of federalism yet not only have a number of liberal
soften their opposition but have actually come to embrace federalism in recent
years because it has been show that in important cases federalism is actually
been associated with the protection rather than deprivation of minority rights. At the
least I think it’s safe to conclude that the association of federalism with
deprivation of minority rights is voiced much less prominently incompetently today than in earlier years. My second critique this is this has never been quite as
prominant as that minority rights critique but if you particularly in policymaking
circles it’s always had a lot of purchase. Although I would argue less so today. If
we take ourselves back to the nineteen seventies in nineteen eighties one of
the central critiques of federalism was is that it will lead to an unhealthy
race to the bottom in policy making. That is the argument that was voiced is states
are seen as having an interesting competing with another and once they
compete with each other their interest is in reducing welfare benefits and
commitments. Weakening environmental standards and this is seen as a general mark against
federalism because it encourages certainly it allows this race to the bottom. Well such as the critique but recent events have predicted the nineteen nineties of
presents real challenges for this race to the bottom critique. For one thing supporters of this critique have had to run up again and confront the evidence of what’s happened since the 1996 federal
welfare reform law which devolved a significant amount of responsibility for
welfare policy to the state’s. So we’re now twenty years just about twenty years out from
this law. What’s happened what’s not clearly
happened is there’s not clear evidence that states with this extra
responsibilities have lower welfare benefit rates the duration of welfare
benefit amounts. That’s not what we’ve seen. Recent events in guarding environmental policy and climate change
have also raised challenges for this race to the bottom critique. In fact in the last decade number of state governments have taken the lead in passing climb. Now I
don’t want to be peremptory here. I’ve obviously been very brief I don’t wanna
be peremptory and saying the debate is clearly settled. It’s it’s it’s it’s
it’s closed set on this side and not the other side. I don’t have time to go into
that and I don’t want to be unfair and unfairly summarize things but I do think it’s fair to say safe to say that the race to the bottom theory is not held up well in light of welfare reform
experience of the last twenty years and in a number of other key areas and climate change in a way that again raises doubts about the persuasiveness of this race to the
bottom forty of American federalism. Well it’s not that states don’t compete with
one another. It’s just that there is likely to compete to be providing the best air and water quality protection as they are
to compete on other grounds. So much for the second critique if these two first
critiques I’d argue that they’re less prominent unless voiced confidently less today than in previous years. The third critique that I wanted… This third critique has taken… on in recent years. This third critique is a little bit
different though. This third critique doesn’t necessarily say that federalism is harmful. It is merely federalism is less relevant or less necessary today and the claim is as follows. Well
federalism might once have been important when state political communities were meaningful and important but state and political communities aren’t as meaningful or necessary today. Certainly not in a case where individuals are often very mobile. Moving from state to state or in a situation where we increasingly consume news from
national media outlets or in a situation where people can clearly see themselves I’m a member of a national community. So the critique is to summarize is state
political communities less meaningful people identified less with their states
in with the national community. So therefore less relevant and necessary to
say this critique it so much that federalism is harmful. We don’t need it as much. Not as necessary today. Well it’s an important claim and it has been subjected to a lot of scrutiny naturally.
I will say on this particular point that conference in a later panel tomorrow
will feature the person who is subject of this to the most scrutiny of anybody
I know professor Ernest Young. Who had a comprehensive analysis of state political identity and so I don’t want to say too much more here but you’ll get a
comprehensive analysis here. But let me say a few things nevertheless about this
question and about this critique. What I would say is that this claim may or not
may not be correct about the extent to which individuals still identify with state
political communities if we speak about identity. So where you can or you are you
a North Carolinian. Maybe one question. I don’t have a firm answer on this. But how about if we ask a different and I would say more important question to what extent are
political attitudes views and policies in state communities more relevant today or not relevant and I would argue that the differences between state political communities
today are as broad as ever and are… in fact it might almost be seen as perverse to make this critique today of American federalism in a polarized
era we’re so divide on so many questions that state political communities are
less support. Let me set out some reasons why I think this might almost be perverse. First
let’s look at election returns. Let’s focus on the presidential election returns. It’s not
just that there are declining number of marginal states and the Electoral
College and increasing number of states where the margin of victory for one
party another 40 percentage points 30 percentage points 20 percentage points
republican or democratic. It’s not just that. That’s a standard point. It’s also the
consistency of support for one party or another in the states. Let me explain there
was not a single county in Massachusetts or Vermont that voted for Mitt Romney in
2012. There was not a single County in Utah or Oklahoma in 2012 that voted for Barack Obama. It’s not just a consistency of states. Within the state we have meaningful political difference. How about if we move away from kind of election returns is an indication of the vitality of state
political communities. How about if we look at the important wedding differences in the
policies adopted in the states. Let me take three issues. I don’t think anyone would say these aren’t issues today abortion guns and voter registration… we not only see why differences among the 50 states we see those differences expanding. Take abortion. A number of states in the last few years have moved to tighten access to abortion and yet a
few states have made a bid in the other direction to make it abortion more
accessible. Same story can be told with guns in
regard to gun contol. A number of states have moved to loosen access to guns in recent years and yet a handful of states have moved the other direction. To tighten access. Consider voter registration. In the last few year’s number of states have moved to either eliminate same day registration or cut down on
early voting days. California just joined Oregon in
adopting automatic registration. Completely different directions. In short far from becoming less
important overtime I would argue differences between state political communities. At
regarding political attitudes are widened in recent years. Whether this is
because people are increasingly self-supporting consciously choosing to
live with other like-minded persons or for other reasons. Whatever the case
state political communities have stark differences and widening differences. And in fact I would argue to turn things around on the critique this might actually be seen as a virtue of American federalism. In an increasingly polarized era where
divisions on policies are stark and widening. And when these differences often line up
along state lines it’s an important virtue of federal system to
allow these policy matters to be fought out and resolved in state political
communities rather than trying to craft a national policy or a consensus gonna be
much more difficult to achieve and where efforts to reach a consensus might
actually further inflame polarization. So much for my the third critique then. Let me
turn finally and spend the remainder of my time dealing with a fourth critique that
I view as the most powerful in a contemporary era. The claim that
policy-making can’t tolerate the inefficiency and obstruction endemic in
a federal system. It’s complaint is an oft heard one. It takes various forms. But the common theme is as follows
in an era of policy complexity interdependence global competition we are
in poverished not helped by inheriting an eighteenth-century federal system with
the federal government oftentimes cannot mandate that something must be done but must rather bargain with state officials in order to secure their
participation. How much better the argument goes. How much better would we be making education policy and health policy if the federal government could just mandate that something be done. And didn’t have to work federal system for
making or administering policy. Such as I’d say is the argument and I view this is the most
serious of the current critiques but also I find it ultimately unpersuasive
critique. In fact as I’ve done to out here to the contrary the federal system might
actually be seen as making policy making in an approved fashion rather than an
impoverished fashion exact opposite of what the critique claims. I say this for
the following reasons and i’ll preesnt some illustrations but the setup my reasons
federal government decision-makers left to their own devices will oftentimes
craft in practical policies. Sometimes because they said hopelessly unrealistic
expectations or goals. Sometimes because they’re acting in haste or in crisis without due deliberation. And
sometimes the problem is that federal officials don’t have an appreciation for
what it takes to actually administer a policy or don’t approve… So let me give three illustrative cases to show to illustrate my points here. I’m going to start with education. We take the No Child Left
Behind Act. What’s striking is the hopelessly on realistic goals set by
congressional drafters in 2001. Congress really did believe that it was possible for
a hundred percent of students to be proficient by the year 2014 and they built the entire law around that goal testing in grades 3 through 8. Requirement that states show and
district show adequate yearly progress towards full… peace for states and
districts that didn’t show adequate yearly progress. Ensure in a tip passion all too typical of
federal decisionmaking hopelessly unrealistic goals whether… How fortunate that state officials able to push back against the law because they saw the
goal… They saw alternative means of achieving these goals. Congress couldn’t really mandate that much of the No Child Left Behind Act to be done congress simply did not have that mandate. What
Congress could do it could threaten to withhold grants from non complying states. You tell us one of the first state to pass a law requiring the in so far as state goals conflicted with federal… Connecticut filed suit against the USA
education department. Some districts in Colorado opted out of the No Child Left
Behind Act and it will take the financial consequences. By the time it got to 2010
2011 a number of states were threatening to opt
out of the law altogether and just take the consequence. These state actions
signal to federal officials the unrealistic expectations of the laws drafters and
overtime laws implementers to modify the law in healthy directions. Granting waivers
interpreting a statute differently. The bush administration was the one to make
the first changes they made some changes how adequate yearly progress was
calculated. It seems curious today but the original law said here’s how we’ll adequate
yearly progress. We will compare this year’s third grade to next year’s third grade
to the follwing years third grade. A number of state said how much better would be if we compare this
year’s third grade to next year’s fourth grade to the next year fifth grade so
we see actually have the same students grow over time. That wasn’t the original law but states by pushing back by seeing alternate solution were able to reach
waivers and result in better policy making. The Obama administration under renewed
pressure from States ended up granting comprehensive waivers to the vast
majority of states freeing States from laws initial requirements. Albeit under the
condition that they follow alternative goals for taking steps to achieve the
laws policies. Now the full story of No Child Left Behind Act is obviously much
longer than what I’ve told here. My main point is imagine if we did not have a federal
system. Perhaps if we only had a decentralized system or States possess powers by the grace of congress how much worse with education
policy have been in the aftermath of No Child Left Behind in a situation where state officials like the autonomy the will to push back against unrealistic aspects of the law. How fortunate then that the state officials are able to provide one scholars
recently turned quote “a bureaucratic and political reality check for guns.” Let me give a second of three illustrative cases before concluding. In the aftermath of
the terror attacks of 911 Congress set out to make drivers license more secure and
in 2005 house committee chair inserted in a must-pass defense
appropriations Bill this is one of the Bill’s always goes through it was funding the Iraq war after all no chance of that was gonna fail and they inserted in that overall law the Real Idea Act of 2005. And the Real Idea Act directed state you must do the following with
your driver’s licenses get this information put the following on your
driver’s license is linked up with this information and by the way do that in
three years time. Well how fortunate that once again my lesson that the U.S. is a federal system where state officials with experience and expertise in this area push back against unrealistic
expectations in a way that’s resulting in more deliberative process. After all once again the federal government lacks the power to directly mandate that states do anything with the driver’s license. All the federal government can do it’s say a state’s not complying will see their residents driver’s licenses not be accepted for boarding
commercial airplanes or any credibility buildings. Well in this context state’s seeing this is a hopelessly unrealistic timeline
and seeing other flaws of law half of the states passed laws saying we
have no intention of changing our driver’s licenses and certainly not in a
designated time and will suffer the consequences. Well after more than half the states
took this action Department Homeland Security started making concessions.
The short version is a law that was supposed to take effect in 2008 the latest
concession is his driver’s license should now be complied by 2016 is the argument that’s made. Once again my reasonable persons can differ on the merits of the real idea. My point is
that policy-making often suffers from insufficient deliberation on realistic
expectations. Thankfully the states in our system retain a good amount of
autonomy to draw on their experience and expertise with governance and to push
policymaking to be more delivered and healthy. Let me close with a final illustrative case and then make a few final remarks. Let me close with the case of health policy and focus on the Affordable Care Act again briefly in this case. Now some observers have seen vindication of their critiques of
federalism with Affordable Care Act. As to how much better health care policy
making would have been with the Affordable Care Act if congress could have simply mandated national solution and didn’t have to bargain with state officials. In this case most might say you’re gonna use the Affordable Care Act as a support for policy making a federal
system. Greet my claims with some puzzle exactly the opposite. Well let me briefly explain. The Affordable Care Act has two key components. One is the setting up of insurance exchanges to deliver insurance
to individuals and small business owners and a second part is expansion of
Medicaid to cover many more persons than originally. The first part of that
the insurance exchange the original law originally said binary choice. States you
either on the entirety of the exchanges or let the federal government do it. Utah was one of the first states to push back and said we actually already have a small business exchange but the law
doesn’t allow us to run that and lets you run the other one. Big bargaining with
the federal government. Eventaully the federal government officials said ok we’ll let
you keep running your exchange it’s working well in this part and we’ll run
the other part. Nowhere was that in the law itself but emerged out of a bargaining between state and federal officials. Other some eighteen other states have actually bargain as well. They said how about if we run these
particular aspects of the exchanges and the federal government runs these
exchanges. No where the law is the provision for so-called partnership
exchange and yet that’s what’s emerged out of these negotiations. Briefly also in the
Medicaid expansion provision that’s a second part here again the original plan
was for all states to expand Medicaid coverage for a number of persons. Cover
them under Medicaid rules about it with more generous reimbursement rates from
the federal government. But after 2012 U.S supreme decision ensured that state
participation was really optional not just technically optional but really
mandatory. States realize we’re in a bargaining position. So a number of state officials said you want us to expand Medicaid but under existing Medicaid rules we would
be interested in possibly expanding Medicaid but in ways that we think would
actually contribute to better health outcomes and will actually lead to
better savings. Well the federal government through research bargaining has given waivers to Arkansas
Indiana Iowa Pennsylvania Michigan in New Hampshire that’s produced a variety
of innovative plants. For instance in some states they say we will expand Medicaid
but under the condition that individual recipients participating in wellness programs and if
they don’t have to pay more. No where in the law no where in Medicaid policy and yet states by pushing back and said we can actually get better policy. The main point is that
policy-making far from being impoverished by federal system might
actually be said to be improved. Well in closing I have not made an effort in
these remarks to be comprehensive and a consideration of all of the advantages
of the federal system. As i’ve mentioned at the start Justice O’Connor’s
eminently quotable paragraph in our Ashcroft decision a quarter century ago provides a good summary of the standard
canonical virtues of federalism. Allows for more competition. Allows for more
tocquevillian learning of the habits and traits of citizenship it governs. Allows for laboratories of
experimentation and innovation. All these standard arguments are important virtues of a federal system. I want to maintain this. What I try to do today and my consideration various critiques
and responses is that we might actually add an additional advantage to that
standard list about policy-making being more improved in a federal system where federal government official can’t mandate much be done but must bargain with state officials to secure their participation. In a way that actually leads to better policy making in the

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