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Sunday, December 18, 2016

Message to Trump-anxious decentralizers: Is your federalism insurance premium paid up?

In a politico-legal ritual as timeless as the Gridiron Dinner, supporters of the Party that lost the Presidency are now discovering the virtues of federalism. Noah Feldman assures that "sanctuary cities" are safe from having their federal money yanked, because the Medicaid portion of NFIB v. Sebelius prohibits "coercive" conditions on federal grants. Jeff Rosen reminds us to take heart in Heather Gerken's "Progressive Federalism," in which national minorities can press ahead with state and local initiatives that would perish in a pigeonhole if suggested in the halls of Congress. The basic idea is that our constitution, with a small "c," contains norms about preserving decentralized political power that can serve as a firewall against Trump's excesses and foibles.

Far be it for me, a certified fan of federalism and decentralization, to look a gift horse in the mouth. If Trump's victory spurs my colleagues to endorse an institutional arrangement the benefits of which are timeless, that is a silver lining to a calamity, even if one suspects that the endorsing of federalism is a little bit opportunistic.

For the rhetoric of federalism to sound convincing, however, one needs to have paid up one's "federalism insurance premium." Otherwise, one's op-ed in favor of those labs o' democracy, those deciding dissenters, will sound (to quote Kurt Vonnegut) about as inspiring as the 1812 Overture played on a kazoo. What do I mean by "federalism insurance premium"? Think of a federal regime as an insurance policy, protecting the risk averse against loss of national power. When one's Party loses the commanding heights of the federal government, federalism insurance allows that Party to retreat into the provinces as a semi-loyal opposition, a shadow government waiting in the wings, advertising its virtues with Massachusetts Miracles and the Texas Way with Deregulated Housing and so forth.Like all insurance, however, the protection comes at a price: One must pay the "premium" of protecting subnational power when one controls the national government, tolerating subnational experiments that one regards as more Frankenstein than Brandeis.

So here is my question to all those new friends of federalism: Is your federalism insurance premium paid up? For instance, when the Obama Administration was forcing colleges and universities to adhere to federal procedural standards for sexual assault hearings contained in its "Dear Colleague" letter, did you stand up for those subnational institutions' right to resist coercive Title IX conditions on federal money? No? Then do not be surprised if your pro-federalism rhetoric about the immunity of sanctuary cities to "coercive" conditions falls a little flat.

We pay for constitutional insurance through self-control when we have power, not through rhetoric when we lose it. Through the exercise of self-control across different political regimes, each Party can slowly confer on institutional arrangements a permanence (sentimentalists would even say "sanctity") that survives change of regimes, sending a signal to their opponents that their self-control will be reciprocated when the tables are turned. The filibuster in the Senate is such a semi-permanent convention; Honored by both parties when the other was a minority who could use it to the incumbent Party's disadvantage, it has become entrenched by convention. Federalism, however, has never been favored by the Party in power long enough to make their pro-federalism protests convincing to their opponents (or even bystanders like myself) when they lose power. No one has paid their premium, so the insurance fund -- the emotional force of pro-federalism rhetoric -- is empty.

Posted by Rick Hills on December 18, 2016 at 09:42 AM | Permalink

Comments

Hi Brian! I won't try to lay out a theory of baselines defining "coercion" in the Comments section. Instead, let's just say that any theory of baselines that would invalidate as "coercive" broad conditions on cities' law enforcement grants (e.g., community-oriented policing money or other grants administered by DOJ or DHS) would likely also put at constitutional risk the Civil Rights Restoration Act of 1987, which overruled Grove City v Bell and greatly expanded the federal funds at risk from a Title IX violation.

I do not want to re-fight the Grove City fight here. I only want to suggest that it is difficult to construe NFIB v Sebelius to limit the federal government's power to yank sanctuary cities' grants yet leave the CRRA's expansive notion of "nexus" untouched. If one sort of condition is unconstitutional on lack-of-nexus grounds, then the other sort seems equally suspect.

Posted by: Rick Hills | Dec 19, 2016 2:47:32 PM

Hi Brian! I won't try to lay out a theory of baselines defining "coercion" in the Comments section. Instead, let's just say that any theory of baselines that would invalidate as "coercive" broad conditions on cities' law enforcement grants (e.g., community-oriented policing money or other grants administered by DOJ or DHS) would likely also put at constitutional risk the Civil Rights Restoration Act of 1987, which overruled Grove City v Bell and greatly expanded the federal funds at risk from a Title IX violation.

I do not want to re-fight the Grove City fight here. I only want to suggest that it is difficult to construe NFIB v Sebelius to limit the federal government's power to yank sanctuary cities' grants yet leave the CRRA's expansive notion of "nexus" untouched. If one sort of condition is unconstitutional on lack-of-nexus grounds, then the other sort seems equally suspect.

Posted by: Rick Hills | Dec 19, 2016 2:47:31 PM

Few are consistent federalists [see, e.g., national ban on a certain abortion procedure] and even there it is a matter of line drawing. It is a matter of determining what deserves local discretion on the balance of factors. Equality concerns, see 14th Amendment, warrants some national control there, including "forcing" things if you get federal dollars. States like dollars there, but apparently are upset at strings.

Posted by: Joe | Dec 19, 2016 1:34:00 PM

Rick, to pick on a small part of your post, what work is "coercive" doing in this argument? I don't have a theory of how one coerces governmental entities; do you? No one else does, that's for sure. Perhaps what you mean is that local officials did not fully internalize the benefits of decentralization when they chose to accept the federal offer? As you probably recall, I think this claim is implausible, since autonomy is a private good to the state legislator while expanded budget authority is a essentially a public good.

In any event, "coercive" here seems to be a place-holder for some other value judgment. Let's just cut out the middle-man, shall we?

Posted by: BDG | Dec 19, 2016 12:58:21 PM

Good post. I particularly agree with the first sentence of your concluding paragraph.

On the issue you raise by way of example, i've been thinking about what a proper regard for federalism means with respect to the Title IX "Dear Colleague" letter. I strongly disagree with the outgoing administration's insistence on a mere preponderance standard, coupled with its disregard for truth-forcing devices conventional in ordinary adjudicative procedures. So, I hope the letter is withdrawn promptly.

But, should my preferred standards be just as promptly substituted? I have my doubts. For one thing, I continue to express amazement that Title IX should even be thought to govern in this context (this isn't my area, though I graze it in Administrative Law). Even if the best reading of the statute is that it does govern campus sexual assault claims, I do not know how one gets to a particular standard of review for campus adjudication. Would due regard for federalism (and due process) be served by a letter advising colleges that DOE has grave concerns about any standard less than (insert preferred burden of proof here), and urgeing colleges to be mindful of the due process issues at stake; further, the DOE will file amicus briefs supportive of students aggrieved by inadequate process?

I think this would formally meet your suggested restraint. The difficulty is how to weigh the Government throwing its weight to one side with respect to judicial intervention. Arguably, that's merely..."departmental federalism"?... to corrupt Howard's (and Walsh's) idea from another context. Is that enough federalism for a principled response? Or must an agency express indifference - or even opposition -to the judicial enforcement of a norm the agency declines, on federalism grounds, to enforce itself?

Adam

Posted by: Adam | Dec 18, 2016 5:10:18 PM

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