Red State Federalism
Did a vision of progressive federalism die in the desert of Arizona? No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.
In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism. We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care. Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism). Climate change was not really a federal issue or really a state issue. Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns. Federalism functioned through the dynamic overlap and interaction of state and federal authority. Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.
But where does this leave Arizona? Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation. Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism? The answer is yes.
Under no view of federalism can states trump valid federal law. The Arizona statute may well be preempted by federal law, and the state challenges to health care legislation will surely founder on the shoals of modern constitutional principles of broad national power. The Supremacy Clause of the United States Constitution, the key linchpin of our federalist system, dictates that federal law will prevail over contrary state enactments–and that all judges shall so declare.
What then does federalism contribute in these situations? Federalism provides a state governmental platform for voicing dissent from national policies. Federalism means that states can pass legislation in tension with federal policy and can file suits against the federal government. Federalism empowers the states to give public and powerful expression to opposing views.
Federalism is not vindicated only when states promote “better” policies than the federal government. Federalism allows states to offer alternative perspectives, expressing the deeply felt sentiments of their citizens. None of this is intended to minimize the real harm of invidious legislation. The outcome of the state governmental process may be ugly. The voices from the desert may seem shrill and hostile. That is a cost of federalism, but over the long run, polyphony or dialogue seems superior to monologue, even if we do not like all of the sounds. Federalism forces us to face the music.