Federalism is unlikely to save progressive politics

This piece is part of a collection on “progressive federalism,” which addresses the conditions under which American federalism advances and hinders the interests of democratic political movements. Other contributions can be found here. If you are interested in participating in the discussion, join us on Twitter at @lpeblog.

Lisa L. Miller–

Can federalism work for progressives? Since the election of Donald Trump, left-leaning scholars and political activists have increased their focus on state and local governments as potential venues for progressive policies. Legal scholars Heather Gerken and Joshua Revesz championed the use of federalism’s multi-layered venues as an opportunity for progressives to “resist Washington overreach, shape national policies, and force the Republicans to compromise.” Because state and local governments are often “led by dissenters and racial minorities,” they argue, progressives have little to fear from the old days when white supremacists used state and local governments to oppose civil rights. In their view, “This is not your father’s federalism.

The problem with this argument is that it lacks any account of power, that is, how the structure of American federalism shapes and channels political activities in ways that are more advantageous to some interests than to others. American federalism is not neutral. In fact, federalism’s many venues generally disadvantage groups with comprehensive, progressive policy aims for several reasons: first, federalism does not just create political opportunities but also limits them; second, state and local governments  are poorly situated to solve national problems; third, jurisdictional boundaries can be remade in ways that disadvantage progressives; and finally, contestation itself over which level of government should perform which activities harms progressive causes.

To begin, federalism functions not only as a system of multiple venues but also as a system of vetoes, that is, political choke points that allow small groups with narrow economic or ideological interests to block or slow implementation of policies preferred by political majorities. Gerken and Revesz laud this blocking potential, but blocking is a generally rear-guard action for progressives, while it is often the end in itself for conservatives. Progressives may use uncooperative federalism to resist deportation of undocumented immigrants, for example, but what they really seek is national immigration reform that protects migrant workers, refugees, immigrants, and their families. For conservatives, however, using states to preempt local laws (e.g., gun control), or resist federal law (e.g., expansion of Medicaid) often is the goal. Blocking policies from being implemented, being uncooperative, or dragging one’s feet in enforcing federal rules are not strategies that are equally beneficial to all political interests. By definition, American federalism has a status quo bias or, to put it plainly, conservativism has a built-in advantage.

This is not to suggest that the only goal of conservatives is to block progressive policies rather than enact their own. But we need to recognize that progressive agendas, by definition and in contrast to conservatives, more commonly seek to marshal and expand the resources of the national government in order to enact comprehensive, universal social policies aimed at providing or improving public goods. For such policies to succeed, big national policy initiatives are often required. As University of Oxford political scientist Desmond King reminds us, “forceful federalism”—major national policies backed by aggressive enforcement—are the primary mechanisms through which many forms of social progress have occurred in the United States. In contrast, without the powerful resources of the national government and consistent policy enforcement across all levels, the many layers of American federalism allow for a great deal of disruption to progressive policies, even when majorities support them.

A second reason why the structure of American federalism disadvantages progressive policies is that states are not well-situated to enact most progressive legislation on their own. It is true that if the Trump administration guts environmental protections, for example, states such as California can enact higher standards and work with other ‘blue’ states to do the same. This is the famous “laboratories of democracy” argument which is often used in Tenth Amendment state sovereignty claims. But the United States has free and open borders between states, which means that state policies are routinely cross-contaminated. From environmental degradation to illegal gun markets, state and local governments cannot control who or what comes and goes from their jurisdiction, making control over most policies that progressives care about extremely difficult. In fact, many environmental problems can barely be contained by national policies, let alone state ones. Moreover, state-by-state enactment of progressive policies requires many extraordinary acts of collective action and cooperation and results in highly uneven distribution of policy benefits across regions.

States also operate with extreme fiscal limitations, constraining the type of policy innovation they can implement. Most states have balanced budget amendments and are therefore restricted with respect to borrowing, which limits their ability to spend during times of economic contraction. Moreover, states cannot control movement of employers, leaving them vulnerable to the demands of corporate interests. And what’s true at the state level is even more true at the local level, as local governments are almost entirely at the mercy of property taxes. The national government has no such constraints. With the dollar as the world’s default reserve currency and the U.S. the world’s primary super-power, the United States government essentially borrows when it pleases, and on generally favorable terms. Few countries, let alone individual states, can say the same.

A third reason why American federalism is a questionable ally for progressives is that the jurisdictional boundaries of national, state, and local governments—and conservatives’ commitment to sustaining them—are fluid and contested. There are no guarantees that progressive policies at the state and local level today will be safe from reactionary rollback tomorrow.

Gun control illustrates this point with great clarity. When cities faced overwhelming gun violence in the 1990s, many tried to enact gun regulation supported by local and national majorities. Despite conservatives’ stated commitment to “local control,” gun advocacy groups mobilized to pass preemption laws at the state level, barring cities from enacting gun regulations stricter than those of the state. When cities responded by suing gun manufacturers in federal court, Republicans went for full national preemption with the Protection of Lawful Commerce in Arms Act, which gave civil immunity to gun manufacturers from liability lawsuits in federal court.  So much for state and local control.

Such strategies are a form of preemption and, while most national preemption is floor preemption—that is, requiring states not to fall below a specific level of provision (welfare spending, pollution limits, and so on)—the gun control case illustrates how Republicans might pursue ceiling preemption, that is, forcing states and localities to abide by limits on what they can do and spend. Legal scholars might see such preemptions as constitutionally problematic based on Tenth Amendment state sovereignty jurisprudence, but students of American history know that such obstacles can be swept away, replaced by new jurisprudential standards.

A good example of such jurisdictional fluidity is the gradual decline of congressional power under the Commerce Clause by conservatives on the Supreme Court, from U.S. v. Lopez through National Independent Business v. Sebelius. While these decisions barred Congress from requiring local officials to conduct background checks and states to expand Medicaid (respectively), the jurisprudential shift from the previous era on the Commerce Clause illustrates just how mutable constitutional rules can be. There is no reason to assume that the current composition of the Supreme Court would reject federal preemption of state and local progressive policies based on the Supremacy Clause, Compact Clause or treaty powers. The Court has already interpreted preemption doctrine to bar some state tort claims against corporate entities.

A final and crucial reason why progressives should be wary of federalism’s alleged political neutrality is that the contestation itself over the jurisdictional boundaries of different levels of government benefits conservative views. When progressives win—or appear to be winning—major policy victories, no matter the level of government, opponents can, and do, move the political debate from whether to enact such policies, to which level of government should do so. This move disrupts, slows, or downright blocks political momentum and policy reform. The endless disputes over the constitutionally proper roles of different levels of government are costly. They take valuable time and resources away from the already slow national policy-making process and disrupt the fragile political mobilization of large groups that support them.

By embracing federalism’s alleged virtues, progressives allow their opponents to perpetuate the idea that opposition to policy at one level of government or another is rooted in constitutional principle rather than political interests. Such strategies also lead to a perverse positive feedback loop for progressives, in which the arguments they make about state and local prerogatives end up enriching the ability of conservatives to block the very national policies that progressives care about in the first place.

None of this is to say that progressives should not fight reactionary policies at the state and local levels if they can. State and local governments should be a central piece of progressivism because without them, national policies can be thwarted, and because political mobilization at the state and local level is a vital component of voter turnout and other forms of national political participation.

But caveat emptor. Progressives should be careful what they wish for. Today’s states’ rights to protect the environment are tomorrow’s states’ rights to deny people health care and unionization or exclude immigrants from public schools.  American federalism is much more amenable to manipulation by advocates for the latter than the former.

Lisa L. Miller, Professor of Political Science, Rutgers University