« SCOTUS OT16 Symposium: How to Argue About Personal Jurisdiction | Main | Why would a mayor abdicate his own city's powers? »

Thursday, July 06, 2017

What is "principled federalism"?

The Washington Post's "Daily 202" has an article praising Republican State Secretaries of State for their "principled" stance in resisting Chris Kobach's demand for voting data. "They are demonstrating ideological consistency in an era of rampant tribalism," gushed the article.

But are they? What exactly does it mean to be a principled federalist? The difficulty posed by this question is that "federalism," like "liberalism" or "conservatism," "equal protection" or "freedom of speech," is an essentially contested concept. There are many different conceptions of such concepts, each with a distinctive ideological spin. Federalism, for instance, comes in a "vote-with-your-feet" free-market promoting variety and a "cooperative federalism," grant-funded variety. The former is libertarian in requiring states to rely on own-source revenues; the latter tends more Left, supporting block grants and general revenue sharing.

Suppose state Republicans "consistently" resist demands for voter data because they generally distrust the feds when it comes to citizen privacy. (One sees a similar attitude of some Red States towards DHS's efforts to standardize drivers' licenses under the REAL ID Act). Suppose that the very same Republican politicians enthusiastically cooperate with the feds on enforcement of immigration laws, entering into section 287(g) agreements to assist DHS in deporting unlawfully present persons. Suppose that they even ban their cities from refusing to honor DHS detainer requests. Are those Republicans just on-again-off-again fairweather federalists, or are they "principled" adherents to a particular vision of federalism in which immigration is said to be an especially "national" issue but citizens' voting, a more "local" issue? Or suppose that a Republican demands that the subnational regulation of guns be limited by SCOTUS on the ground that the Second Amendment right to bear arms is a "national right" but supports the decentralization of abortion regulation on the ground that the Fourteenth Amendment's Due Process clause has nothing to say about abortion. Such a stance on decentralization can be given a general theoretical account (i.e., "the definition of 'national rights' is properly centralized"). Does such an account count as "principled" or "opportunist"?

Since no reasonable person supports the decentralization or centralization of all issues, principled politicians must always exercise some sort of selectivity about which issues are decentralized. So here are two non-rhetorical questions, with no post-jump theory providing you, gentle reader, with any guidance on any answer. (1) Given that every theory of federalism must be selective in what it decentralizes, how do we determine whether any particular theory of federalism's selection of decentralized issues is "principled" or not? (2) If one cannot answer (1), then should one simply dispense with "federalism" talk?

Posted by Rick Hills on July 6, 2017 at 01:21 PM | Permalink

Comments

"Since no reasonable person supports the decentralization or centralization of all issues..."

Poisoning the well.

Posted by: YesterdayIKilledAMammoth | Jul 6, 2017 4:33:49 PM

I am pretty sure "principled" in the quoted article is simply shorthand for "not changing your tune about a particular issue when your party is in power."

"the latter tends more Left, supporting block grants" - What part of the Left supports block grants?

Posted by: biff | Jul 7, 2017 9:22:12 AM

Biff asks, "what part of the Left supports block grants?"

Donald Trump's proposed budget recommended elimination of CDBGs. My guess is that the Democrats want CDBGs to continue.

Of course, when a grant deals with redistribution of wealth to low- and moderate-income households, the Left distrusts block grants and prefers categorical (or, better yet, just a federally controlled program) for obvious reasons. In general, however, the Left has traditionally preferred intergovernmental grants, while the Right has preferred just cutting taxes and letting subnational governments fund themselves with their own-source revenue.

Posted by: Rick Hills | Jul 7, 2017 10:16:51 AM

What is your evidence that it's an essentially contested concept, rather than just a contested one?

Posted by: anon | Jul 15, 2017 3:36:19 PM

Post a comment