Wednesday, April 01, 2020

In a Pandemic, as Always, Federalism is a Double-Edged Sword

by Michael C. Dorf

Note to Readers:  I am aware that today is April 1. In past years, I have written April Fool's posts on this date. I realize that many people want--indeed, desperately need--a humorous distraction, and I don't begrudge them that. I just don't have it in me right now to provide one. In the event that the crisis has largely passed in a year, I'll do my best to provide an especially funny piece then. For now, here's a serious column on federalism.

My most recent Verdict column, which was published on Monday, discusses last week's Supreme Court ruling in Allen v. Cooper. In an opinion by Justice Kagan, the Court held unconstitutional a federal statute that abrogates state sovereign immunity against private lawsuits seeking compensation for copyright infringement. The case applies prior precedent--especially Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which held the same thing with respect to patent infringement.

But Florida Prepaid and the Court's state sovereign immunity jurisprudence more broadly are a mess.  I conclude the column by characterizing the doctrine this way: It "rests on a highly dubious construction of the constitutional text, serves a largely symbolic interest in the 'dignity' of the states, and includes an extremely complex and mutually contradictory set of rules, exceptions, and exceptions to the exceptions."

In the column I suggest that, given liberals' prior disdain for the entire state sovereign immunity project, the best way to understand their decision to adhere to the precedents is a kind of tactical bargain: Perhaps Justice Kagan accepts this conservative line of cases in the hope that CJ Roberts will reciprocate in abortion cases and other areas where the existing precedents are more liberal. Here I want to pivot back to the role of federalism--judicial and otherwise--in the pandemic response. I'll identify ways in which it is helpful and ways in which it is harmful. I'll conclude with some thoughts about whether we can say anything general about the virtues and vices of federalism.

In ordinary times, federalism has at least two key virtues and at least two key mirroring vices. The virtues are both products of decentralization: it allows customization to local circumstances and to local values. With respect to the latter, there is some evidence that people migrate to live with like-minded people. Thus, if the nation is divided 55-45 on some issue, rather than 45% of the people being unhappy with the policy on that issue if decided at a national level, if the people sort themselves, smaller numbers will find themselves in jurisdictions with policies that are out of step with their values.

Yet the sorting virtue has a consequent vice if one is not a moral relativist or nihilist. Suppose the issue with respect to which the people would sort is a matter of basic justice, like equal access to marriage for same-sex couples. Deciding the question at the state level would mean that more people live in places that reflect their values but that fewer people would have access to the basic right. Here nationalization (in the form of a Supreme Court decision) does better. Likewise with respect to practical questions. Just as there are some issues with respect to which varied approaches make sense, there are others where spillovers, races to the bottom, and other problems mean that a coordinated national policy would make better sense.

In a perfect world, we might have decentralization without federalism--that is, we would have a national government that devolved power to locales or regions when appropriate and otherwise set policy nationally. However, (a) there is not generally agreement about exactly when power should be devolved and when it shouldn't be; and (b) in any event, we have a system of "hard" federalism, in which the division of state and national power is not typically driven by such pragmatic considerations. State sovereign immunity doctrine--which the Court has characterized as preserving the "dignity" of the states--is one but only one example. Accordingly, and in general, federalism is a mixed bag.

Mostly the ambiguity of federalism is a question of which side you're on. To put it in crude terms, if you're a Democrat living in a blue state during a period of Republican domination of national politics, you'll be grateful for the protections federalism affords, because it will enable your state government to mitigate for you and others in your state what you regard as the bad policies of the national government. Likewise, you'll be unhappy about federalism if your party is in the minority in your state but dominant in national politics.

Consider a couple of examples. First, suppose you live in a state in which the state and local government aren't taking the pandemic sufficiently seriously. You wish the federal government would simply order these officials to do more. You'll be unhappy that the anti-commandeering doctrine that the Supreme Court has found in the Tenth Amendment prevents it from doing so.

Now suppose that you live in a state that is taking stronger measures than the President thinks are necessary. You worry that he will seek to override those measures. You will be grateful that the President cannot do so unilaterally. True, an Act of Congress declaring the country open for business would be valid under the Commerce Clause and could pre-empt state restrictions, but the separation of powers at the federal level is itself a protection for states--ensuring that national policy does not override state policy absent the sort of strong consensus needed to enact legislation that has support from the House, the Senate, and the President.

So far it mostly looks like federalism is a double-edged sword in only a very crude way: If your preferred policy has support at the state but not the national level, you'll favor federalism; if your preferred policy has support at the national but not the state level, you'll oppose federalism; if your preferred policy is either popular at both levels or neither level, you'll be indifferent. Can we say anything less crude?

To first approximation, I think the answer is no. Federalism works reasonably well in some places, less well in others, just as strongly centralized systems do. It tends to be adopted for idiosyncratic historical reasons or sometimes as a compromise among sub-units that barely form a nation. In the latter circumstances, even the success stories (like Canada and Belgium) are at best qualified, given continued resentments.

Of course, there remain cultural divides in the US. New York is not Mississippi is not Texas. But many of the divisions are within states, between urban, suburban, and rural areas. Or they are more regional than state-based. For example, the NYC metro area comprising parts of New York, New Jersey, and Connecticut is more coherent than, say, the state of Pennsylvania, even if James Carville's famous description of the state as Philadelphia and Pittsburgh with Alabama in between is not entirely accurate.

Accordingly, if we were starting from scratch, it's not clear that a federal system would be ideal for the current land mass of the US. It is clear that the particular federal system we have would be far from ideal; it grossly overweights the interests of people living in small states and somewhat overweights the interests of rural voters.

We are not starting from scratch. But given the uncertainties and what Herbert Wechsler called the "political safeguards of federalism," there is no good reason for the Supreme Court to aggressively enforce federalism norms against Congress, especially where those norms are, as with state sovereign immunity doctrine, ones the Court has invented rather than plausibly deriving from the Constitution.