Business Collaboration with Government: Does Reward Outweigh Risk? George Wallace stood in the schoolhouse door and refusedto let African-American students enroll at the University of Alabama,he invoked the 10thAmendment. Federalismtaking the opportunity to innovate, experiment, and evaluate at the state and local levelis not merely a second-best option. champions of social change? Jefferson feared a centralized government would lead to European-style tyranny and, along with James Madison, he founded the Democratic-Republican Party to push back against monopolistic financiers. There is no question that states rights was often used to defend horrible things, says Young, but decentralization is not by definition conservative. We expect dissenters to speak truth to power, not with it. Joshua Revesz But sometimes that worry is misguided. Everyone ought to experience, in the words of President Bush, a good thumpin.. We hope you can join us for this important discussion! Federal dependence on the states is so pronounced in criminal law that Vanderbilt law professor Robert Mikos has argued that states can nullify federal marijuana law by withdrawing enforcement resources. Now is the time to acknowledge the nationalist case for local power. In the 1790s Hamilton argued fora stronger centralized government and a national bank. Examples of uncooperative federalism abound. Legal Culture By Anna Dorman June 6, 2022 Whenever Democrats face setbacks on a national level, the murmuring begins. These lawsuits often reach beyond Californias borders, allowing city and state officials to play a role in shaping nationwide policy. This piece originally appeared on BillMoyers.com. Samuel D. Renihan's dissertation on particular baptist covenant theology has now been published as From Shadow to Substance: The Federal Theology of English Particular Baptists (1642-1702). federalism in red and blue states and localities, It is the biggest in the nation, with almost 40 million residents. When Texas insisted that its textbooks question evolution, for instance, its market power ensured that textbooks used in blue states did the same. It would be foolish to insist that every state and local policy must be progressive for progressives to favor federalism. or local level is essential in such critical areas as But in a saying often attributed to Mark Twain, it often rhymes. Gone are the days of policy-making enclaves shielded from national power. And yet the very idea of a dissenter who decides seems like a contradiction in terms. Consider the way the debate over same-sex marriage has unfolded during the last decade. If progressives want to take a lesson from the conservative handbook, they will have to consider which parts of the equality projectreforming immigration, policing, sentencing, to give just a few examplesthey can directly advance. Progressives, of course, care a good deal about nurturing and protecting dissent. And they liberalized gun regulations at a time when the national consensus seemed poised to shift the other way. Excluding the military, it employs just short of three million personnel. Spillovers thus force politicking, negotiation, and moderation. They have a right to speak their mind, but only when they speak for themselves. Progressive federalism has a long, rich history The odd thing about the progressive case for local power is that it is utterly familiar to those on the ground. States rights have been invoked to defend some of the most despicable institutions in American history, most notably slavery and Jim Crow. When these cities and counties do so, they act on behalf of the State of California and can seek the same expansive remedies as the attorney general. For example, consider the response to the No Child Left Behind Act, perhaps the centerpiece of George W. Bushs domestic policy. When progressives turn to governance, however, they crave administrative efficiency, worry about local incompetence, and have a strong impulse to quash local rebellion. The president, Congress and the Supreme Court often hog the spotlight, so it is easy to forget that the states were here first. For years, states rights and federalism have been a right-wing cause, but now the tables are turning. As Heather Gerken, distinguished scholar of progressive federalism, argues, progressives can respond to President Trump and congressional gridlock by using the substantial powers of federalism both cooperatively to shape national policies, and uncooperatively to resist national policies at odds with progressive goals. for innovation and fast pivots, enabling rapid Liberals are often concerned that federalism leaves too many people behind. 20th May 2018 By Brandon Adams. as the year when distrust in the US Federalism is a political system that believes each state under a central government can have its own laws and customs while still sharing unified laws, customs, and currency. But they are also a tool for encouraging compromise. Democracy works better when the usual losers sometimes win and the usual winners sometimes lose. Supporters of same-sex marriage spent many years exercising their First Amendment rights. If cities and states care about the laws that Trump plans to abandon, they should figure out how to enforce those laws themselves. Their success shows that federalism is a neutral and powerful tool for change, not an intrinsically conservative quirk of U.S. government. In the Obama years, red states took full advantage of their power to shape the national conversation. But at the Constitutional Convention of 1787, the goal was to form a more perfect union that would provide military security and a more open system of trade, while retaining the rights of states. When states opt out of a federal program, it costs the federal government resources and political capital. Here, they might take guidance from California, the superstate of the progressive federalism pantheon. Local institutions offer racial minorities the chance to enjoy the same sense of efficacyand deal with the same types of problemsas the usual members of the majority. Admittedly, this argument involves a more rough-and-tumble account of democracy than we read in our civics textbooks. Our Constitution outlines aseparation of powersbetween the federal governments three branches. The 10thAmendment answers that question, it says no, the list is exclusive. The federal government relies heavily on city police departments to enforce federal law. be slashed. When Virginia made it easy to buy a gun, guns flooded into New York City despite its rigorous firearms prohibitions. Instead, we saw a peaceful if slightly carnival-like atmosphere, with the only source of excitement being the Gay Mens Choir. Federalism in the Obama Administration. of government, there is strong agreement that disappear; they will only intensify. And if Omaha is segregating its schools, who wants to be on the wrong side of that fight? LGBT advocates realized that nationwide marriage equality would be a heavy lift. Racism, Parochialism, and the Costs of Local Power. . [1] Progressives also associate federalismand its less prominent companion, localism, which simply means decentralization within a statewith parochialism and the suppression of dissent. In the worst-case scenario, states threaten secession and it leads to civil war, as it did in 1861. handle problems. As depressing as America may seem right nowjust as it seemed to many in the early 1900sthe roots of a constructive and effective democracy are still with us. Read more stories by Laura D. Tyson & Lenny Mendonca. Both can help further equality and nurture dissent. Eliminating opportunities for local governance to protect racial minorities and dissenters also means eliminating the very sites where they are empowered to rule. The arguments used to fight the historic Civil Rights Act of 1964 and the Voting Rights Act of 1965 were based on federalism. Think about the movement to bring religion into schools. . We suspect that most progressives arent even aware that the Democrats have lost 27 state legislative chambers since 2008. governments and their local governments to It would be useful for progressives to recognize that fostering dissent involves not just the First Amendment, but federalism; not just minority rights, but minority rule. federalism, mode of political organization that unites separate states or other polities within an overarching political system in a way that allows each to maintain its own integrity. We have a firm sense of what integration or diversity looks like: a statistical mirror. three million workers and a 2016 budget of both cooperatively to shape national policies, federalist approach to policy design and delivery, Sign up for our print edition! Their recalcitrance won out: The Bush Administration gave up and granted states so many waivers that they effectively gutted the federal program. (And one of the authors of this essay has spent more than a decade arguingincluding in the pages of this journal that federalism doesnt have a political valence.) There are several compelling rationales for a should be evaluated and changed on If they were to pass a law like Californias, empowering state attorneys general and city attorneys to sue in order to enforce federal law, they could do the work that the Department of Justice might neglect in the coming years. As mentioned, many think of federalism as a means of entrenching the worst aspects of our politics. Tyson served in the Clinton administration as the chair of the Council of Economic Advisers (1993-1995) and as director of the National Economic Council (1995-1996). Note, for instance, how different these instances of minority rule looked from the bread-and-butter activities of other proponents of same-sex marriage. While progressives have long been skeptical of federalism, progressive federalism could prove to be an important defensive tool for progressive advocacy under a Trump Administration and Republican Congress. One of the main focal points of Federalism is that it of decentralisation Federalism in the Constitution: Federalism can be found in a number of areas in the US Constitution. But having a Democrat in the White House was just too tempting for most progressives. Maybe this federalism thing is worth a shot? It empowers those who will oppress them. States accepted the federal grant money, but slow-walked reforms and often fudged testing standards. social sector organizations fulfill these public When Alabama Gov. A federal program that doesnt affect California, New York, and Illinoisto say nothing of Houston, Atlanta, and Phoenixwont touch a huge portion of America. It should come as no surprise that de Tocquevilles democracy fails to produce Webers bureaucracy. So it enacted a tax surcharge on all publicly traded companies whose CEOs are paid more than one hundred times its median worker. Democracyis an independent organization. The federalism that haunts our history looks quite different from the form of local power that prevails now. But history suggests a more muscular account of what a democracy can do for minorities. Think, for instance, of Governor Arnold Schwarzeneggers claim that there would be rioting in the streets in response to San Franciscos decision. Some early state and local battles were lost, but same-sex marriage proponents used those fights as staging grounds for organizing and debate. They enacted tough abortion limitations that forced that issue to the front of the political agenda. How exactly will you prove they wont occur? is a third-year student at Yale Law School. the belief of all levels of government working together cooperatively to achieve and solve common problems. Because California has set higher emissions standards than the federal government. Progressives have to make their case to the American people, just like everyone else. For example, we typically dont use the word dissent to describe San Franciscos decision to issue same-sex marriage licenses or the efforts of the Texas school board to rewrite its history curriculum. Built by Tierra Innovation. Progressive Federalism: A New Way Forward? It is not hard to figure out why. If progressive leaders hold their ground, they can shield their constituents from the policies they most oppose and maybe even force the new Administration to seek compromise. The political principles . Often when we talk about democratic equality, we focus on its symbolic benefits rather than its material ones. Progressives have lost power in Washington. When dissenters have an opportunity to govern, however, they must figure out how to pour their arguments into a narrow policy space. There are Indeed, in the most recent schools case, every Supreme Court opinionthose penned by liberals and conservatives alikecondemned heterogeneous schools where minorities dominated as segregated.. Heavily indebted cities and states may find fighting the federal government is too expensive. Or well as state colleges and universities. The latter drew attention to environmental issues by pledging that progressive cities would seek to join the Paris climate agreement if the Trump Administration withdraws. The first is integrationensuring that our fractious polity remains a polity. The same, of course, is true of a national system. federal government and about basic standards problems addressed by federal programs will not Or consider the Supreme Courts equality jurisprudence. Designed by Arsenal, developed by Hop Studios. Such a strategy would be impossible without the hard-won battles of the civil rights movement. And its time progressives recognized that federalism isnt just for conservatives. federal government triggered a resurgence of Many of the best progressive ideas were born in cities and states, and social movements have long used state and local governments as testing grounds for their ideas. ideas and partnerships with nongovernmental Republicans have responded to this challenge by abandoning their stated commitment to decentralization and threatening to strip all federal funding from sanctuary cities. In the early 1990s, Michigan and Wisconsin, led by Republican governors, used federal money to enact Welfare to Work schemes within the very welfare programs they sought to topple. Minority rule thus requires dissenters to do just what the majority is accustomed to doing: deal with criticism, engage in compromise, figure out how to translate broad principles into workable policies. Progressives are deeply skeptical of federalism, and with good reason. But these reforms would not be fully implemented until 2014-2019, and the law had to run perilous legal and partisan gauntlets first. The Court was troubled by the magnitude of the threat and the weak connection between the existing Medicaid program and the changes made by the ACA. Small-government conservatives, on the other hand, more frequently advocate for federalism to uphold power centered in the states. McCulloch v. Maryland and resistance, championed by state and The problem, according to Young, was racism and not federalism., Fast forward to today. Academics thus praise diverse democratic bodies because they involve the politics of recognition; they grant racial minorities the dignity of voice, ensuring that they play a role in any decision-making process. catalyzing, advocating, innovating, and delivering The war has continued with the Obama Administration, which has struggled to rope states and localities into cooperating with its education agenda. Some issues are highly salient to everyday people, which is precisely why those in power dont want to go anywhere near them. local governments, trusted by their citizens, Why does this matter? Lunch will be served. $600 billion, relies on state and local governments, Progressive liberalism is a strain of thinking that has influenced social and economic policy in the United States. And even national standards on fuel efficiency and the like have emerged largely as a result of states like California using their policy-making power to prod national regulators to move forward. And local politicians will always have to devote time and resources to addressing local concerns. our most important national policiessuch as of individual states to function as what US How Bidens fight against monopoly can guide his party to victory, and empower American to build a truly better future. Like uncooperative federalism, spillovers are a form of agenda-settingthey force debate on issues Washington might want to avoid. The answer lies within what legal scholar Heather Gerken calls progressive federalism: the mobilization of state power against the federal government by progressives, given that "racial minorities and dissenters can wield more electoral power at the local level than they do at the national." Finally, states and cities should remember that they have the power to set the agenda. Cities and states have long been at the center of the fight over national values. the delivery of federal programslinking billions If progressive leaders hold their ground, they can shield their constituents from the policies they most oppose, and maybe even force compromise. We miss the possibility that there is an intermediary stage: empowerment. Supreme Court Justice Louis Brandeis, appointed to the court in 1916, was a progressive era champion of federalism, attacking the curse of bigness. He famously noted that the states arelaboratories of democracyand wrote: It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.. Copyright 2023 Salon.com, LLC. During the 19 th Century, progressive democrats like Jefferson and Jackson regarded the states as . of programs and services, bolstering citizen A constitutional arrangement by which power is equally distributed between a central government and state governments. Sign up for our print edition! Protecting a state or citys residents from financial fraud is an effectiveand sure-to-be popularmethod of progressive resistance. When one state regulates, it often affects its neighbors. When dissenters wield local power, they can no longer jeer from the sideline. important partnership roles in researching, Progressives also associate federalismand its less prominent companion, localism, which simply means decentralization within a statewith parochialism and the suppression of dissent. Politics can play an important role in promoting economic integration, and economics can play an important role in promoting political integration. The most important guarantors of racial equalitythe Fourteenth Amendment, the Civil Rights Act, the Voting Rights Actwere passed at the national level and resisted at the local level. Followingare some of the issues upon which states may test their powers to go it alone, or resist new federalpolicies. In 2006, The New York Times wrote a story on Nebraskas decision to address school failures in Omaha by dividing the city into three racially identifiable school districts. has plummeted, annual Gallup polls show It is important here to note that even when states and localities pass policies that progressives dislike, getting the issue on the national agenda is whats of value. Minority rule shifts the burden of inertia and thus enables dissenters to force the majority to engage. Blue cities and states can learn from the San Francisco model. But while we have long recognized the dignity conferred by the rights afforded by the Fourteenth Amendment or civil-rights statutes, we should also acknowledge the dignity involved in groups protecting themselves rather than looking to the courts for help. Thats because when a minority dissents by deciding, the majority cant just ignore the dissenters, as majorities are wont to do. But dont confuse the Democratic-Republican Party with the current Democrats and Republicans, or the Federalists with contemporary federalism they are different species. So much for dignity. If stripping federal funding for a program enacted within the same statutory scheme is a problem, then theres little chance that Congress can strip all federal funding across all programs simply because states refuse to take part in one of them. By closing this banner, scrolling this page, clicking a link Similarly, states can thwart federal mandates by insisting on following the law to the letter. 2 The Rationale for Federalism Government action at the federal, state, We have made progress on both fronts, but there is a great deal more work to do. ability of the Supreme Court to determine constitutionality of decisions fiscal federalism the national government's usage of money to bribe state governments into carrying out programs; use project grants (for certain issues) and block grants (states use as they want) progressive federalism Or give the gift of Democracy to a friend or family member. can nonprofits, philanthropic organizations, or The same majority-minority electoral districts damned by the Courts conservatives as balkaniz[ing] were termed the politics of the second best by its liberals. Distrust of states rights exists for good historical reasons, but today, minorities and dissenters can rule at the local level. Using the power they wield in states and cities across the country, progressives can do a good deal more than mourn and obstruct. Even if the Trump Administration were to lower environmental standards to protect gas-guzzling cars, it wouldnt matter. But it is a mistake to equate federalisms past with its future. He made his name in the world of urban commerce and believed that a vibrant merchant class and centralized power would be Americas ticket to worldwide stature. The second rationale is that a federalist The state is more than capable of sending some more spillovers other states ways. And it certainly offers a less pristine view of integration than the one we associate with the rights model. The notion of turning the tables thus taps into a deeply intuitive idea of democratic fairness. But the major social and economic Blue states can use this money to preserve their favorite parts of the current law, pushing health-care policy leftward from within the Republicans own framework. Decentralization will produce policies that progressives adore, and it will produce policies that they loathe. On other occasions, states have avoided a head-on confrontation with the feds and instead waged wars of attrition. inevitable results of more federal gridlock? It was not the job of the federal constitution to create states or to give them power, says Ernest Young, a law professor and federalism expert at Duke University. there are numerous examples of progressive They turned their attention to Washington while neglecting what was going on in California, Massachusetts, or New York City. "Progressive Federalism" Is a Trap Like every fancy theory you learn about in constitutional law, federalism has no intrinsic value apart from the substantive outcomes it can deliver. Minority rule and minority rights are tools for achieving the same ends. The federal government, with If New York regulates lead in toys, children everywhere will be safer because of spillovers. with innovative policies without putting the Why? (Marble Cake) Creative Federalism the type of federalism that shifted more power towards the national government by bypassing state governments and allowing the federal government to have direct control over statewide programs. They sought to reframe the same-sex marriage debate into one about bakers and florists by enacting expansive religious freedom legislation. Federalism a vertical, ambiguous division of power doesnt have a particular political valence, says Kenneth Mack, a legal historian at Harvard Law School. That work played a crucial role in fueling a national debate on the question. They can use all the tools weve suggested to encourage moderation and reshape the national conversation. Why should we care? Given the slim chances of Democrats winning back Congress in 2018, many think that the best progressives can do is hunker down for the next four years, blocking legislation on the Hill and challenging it in court. This is not your fathers federalism. demonstrated success in maternal and child So below we offer a users guide that identifies four ways that progressive leadersfrom Jerry Brown and Bill de Blasio to small-city mayorscan push back against federal policy and force compromise. Perhaps its because progressives often are the underdogs. Finally, states can fill gaps in federal regulatory schemes by resisting programs from within. the basis of their results. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. But dissent matters to progressives even when they think they can build a majority for their positions. Among these promising localities is New [] sponsor innovation, including waivers, conditional Portland was concerned about income inequality and wasnt willing to wait for Washington to act. authority to delegate many of their powers to We often associate federalism with conservatism, but that's pure foolishness on our part. Or consider marijuana. Our terminology is bimodal. Which is the best definition of federalism? By taking advantage of the opportunities afforded by minority rule rather than relying on minority rights, proponents of same-sex marriage remapped the politics of the possible. of those related to the military) are on course to But its possible to believe in, even revere, the work of that movement and still wonder whether rights, standing alone, will bring us to full equality. These sorts of bold pronouncements are not mere bluster. States and municipalities have a lot of power to challenge Washington. In 1786, people were geographically distributed in populations that at some level didnt trust one another and might not like one another, says Levinson. It is one where the energy of outliers can serve as a catalyst for the center, allowing them to tee up issues for national debate. Federalism - the division of sovereign authority among three separate levels of government (local, state and national) - is a distinctive feature of American democracy. Next, states can also resist federal policy by engaging in what one might call overcooperative federalism, the federalism equivalent of a union working to the rule. Labor unions understand that a strike isnt the only means of protest. of successful experiments. We should care because the success of our democracy depends on two projects. capacity. They get a chance to get something done and to experience the need for compromise, as dissenting from the margins normally comes with the luxury of ideological purity. Antimonopoly: A Master Narrative for Democracy. This comprehensive measure promised to regulate private health insurance and extend affordable coverage to more than 30 million Americans, mostly people with low or lower-middle incomes. [1] The effects of turning the tables are not, of course, confined to racial minorities. We have long associated minority rights with material advancement and expressive dignity for people of color. Indeed, much of the most important work on progressive issues started at the local level. When progressives talk about democracy, they celebrate the idiosyncratic dissenter, the nobility of resistance, the glory of getting things wrong, and the wild patchwork of views that make up the polity. Often, cities refuse to assist in deportation effortseither because they disagree with those efforts on principle or because they believe that undocumented residents will be less likely to report crimes if they fear immigration consequences in the face of such uncooperative localism, there is little the federal government can do. Reproduction of material from any Salon pages without written permission is strictly prohibited. If blue states and cities wish to follow suit, they should take early lessons from Jerry Brown and Michael Bloomberg. Progressives at the state and local level can influence policy simply by refusing to partner with the federal government.. The San Francisco City Attorneys Office, with which both of us work, has used this power to great effect: It has sued tax preparers, mortgage lenders, and prescription drug companies for violating federal law. The term federalism refers to the political understanding or system where ultimate authority is shared between the state or regional governments and the central government. They wrote editorials, marched in parades, and argued with their neighbors. there should be a shift from top-down programs But we typically think of participation in highly idealistic and individualistic terms while ignoring crass concerns like who wins and who loses. These divisions reflect deep fissures in underlying programmatic grants (earmarks) . For all Trumps bluster about repealing the Environmental Protection Agencys Clean Power Plan and other regulations, the rollback process may take years, if it happens at all. The possibility of progressive spillovers answers another progressive objection to federalism. How Bidens fight against monopoly can guide his party to victory, and empower American to build a truly better future. This process built popular acceptance of same-sex marriage and explains why the Supreme Courts nationwide ruling in Obergefell v. Hodgesa decision that would surely have caused intense controversy before states started to actwas greeted enthusiastically by an overwhelming majority of Americans. The first, Printz v. United States, decided in 1997, stands for the proposition that the federal government may not commandeer state and local workers by forcing them to carry out federal policy. They are wrong to worry about it now. Democrats have won a super-majority in both houses of the California legislature, and its governor, Jerry Brown, seems to be spoiling for the fight against Trump. Two projects promoting political integration blue states and localities, it often rhymes dissenter who decides seems like a in... Can build a majority for their positions the laws that Trump plans to abandon, they might guidance! 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A saying often attributed to Mark Twain, it wouldnt matter local level with it New. American to build a majority for their positions from any Salon pages written... Laura D. Tyson & Lenny Mendonca gas-guzzling cars, it is the time acknowledge! Police departments to enforce federal law the wrong side of that fight usual losers sometimes and... On progressive issues started at the local level saying often attributed to Mark Twain, it costs federal! A saying often attributed to Mark Twain, it often affects its neighbors all... With it a right to speak their mind, but same-sex marriage has unfolded during the 19 Century! They effectively gutted the federal grant money, but now the tables thus taps into a narrow policy space and... Californias borders, allowing city and state officials to play a role in fueling a national system of. That issue to the front of the progressive federalism pantheon the notion of turning the tables are.... 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