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Wednesday, March 12, 2008

Federalism and the Presidential Candidates

Being a federalism nut, I naturally surf the ’08 election blogs and websites looking for signs that anyone cares about basic issues of federalism – you know, statutory and regulatory preemption, dormant commerce clause, uniformity versus diversity of individual rights, etc.

Here is the bottom line from my investigations: Neither the voters nor the candidates give a darn about federalism.

Take preemption. As usual, the Court’s docket is crowded with important preemption cases: Altria Group v Good (are state claims about deceptive advertising by cigarette manufacturers preempted by federal labeling laws?), Kennedy v DuPont Plan (are state laws regarding divorced spouses’ rights to insurance preempted by ERISA?), Chamber of Commerce v Brown (are state rules about the use of state funds preempted by the NLRA?) , and Wyeth v Levine (are state law claims that injected drugs were mislabeled preempted by federal FDA labeling requirements).

But none of the candidates’ websites have anything to say about preemption. John McCain’s website has but a single line favoring tort reform, without elaboration.

It is not as if these preemption issues are small potatoes: The 2004 campaign involved prominent discussion of “Patients’ Bills of Rights,” federal bills that would have eliminated some ERISA preemption of state-law claims against HMOs. McCain was, indeed, the co-sponsor of one such bill (the McCain-Kennedy-Edwards Patient Protection Act). And the issue has been the source of raging controversy in DC, with the FDA, OCC, and other federal agencies taking strong preemption positions, opposed by the trial lawyers, one of the most powerful of the democrats' constituencies.

Preemption is not the only big federalism issue. Davis v Kentucky Dept of revenue involves the right of states to provide tax exemptions only for their own bonds, discriminating against bonds issued by other states. Does the dormant commerce clause bar such discrimination? The Court will tell us this term – but, in the meantime, the political process is simply silent on the issue.

The silence of the Presidential candidates on federalism is all the more perplexing in that, according to the conventional wisdom, federalism is supposed to be protected through the national political process. Well, the national political process is chugging along in high gear, but no one is making federalism an issue.

Why not? Could it be that federalism, like most complex institutional arrangements, is simply far too obscure for voters to make a basis for their votes? Rob Mikos thinks not: in an interesting empirical study, he claims that voters actually care about which level of government makes decisions. (See working paper)

Maybe he is right. But you can’t tell from reading the campaign literature.

Posted by Rick Hills on March 12, 2008 at 03:08 PM in Law and Politics | Permalink


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Rick --

These are good points, but I think there have been attacks on the Bush administration's approach toward preemption on other issues -- most prominently, the EPA's refusal to grant California a waiver regarding regulation of greenhouse gases. (I think Obama may have even sponsored legislation seeking to overturn the decision.) This preemption issue has garnered some attention (though there are lots of other issues and non-issues that seem to be getting more air play right now).

I see your point that a candidate could use Wyeth to talk about federalism (among other issues), but its possible that the candidates (and voters) think it is premature to do so -- maybe the Court will limit the preemptive reach of the FDCA, in which case there's no need for further (political) action.

Your point re: OCC is a more interesting one, I think, because the preemptive reach of the NBA does relate to an issue that's on the minds of most voters. However, it's possible that voters think the federal government should have power over banking, including the power to regulate mortgages -- so they might not see preemption as the problem -- the content of the federal regulations is -- and there's lots of debate over how the federal goverment and candidates should respond to the crises (It's also possible voters think the preemption of state predatory lending laws isn't the main culprit behind the housing crisis and that other factors are primarily to blame.)

Posted by: Rob Mikos | Mar 13, 2008 2:03:52 PM

All of Rob's points, as well as his paper, seem eminently sensible to me. But I am unpersuaded that the underlying issues in the preemption case "are irrelevant or pretty unimportant to the vast majority of voters (and, probably most lawyers as well)."

The issues involve (for instance) the amputation of a musician's arm because a corporation failed to inform the doctor about the risks of injecting an anti-allergy medicine. This case seems positively cinematic to me (think "A Civil Action" or "Michael Clayton"). Why would not some John Edwards wannabe not highlight the injustice of corporations' shielding themselves with federal laws ostensibly enacted to protect consumers? Why don't Clinton and Obama advance their populists appeals against Bush by denouncing Bush's FDA?

We are neck-deep in a subprime crisis in which discussions of predatory lending have featured prominently in the news. Why no attacks on the OCC for preempting state laws against predatory lending? It does not seem persuasive to me to say that injury from drugs and predatory lending are uninteresting or unimportant issues.

Posted by: Rick Hills | Mar 13, 2008 8:07:08 AM

Fred Thompson did talk up federalism quite a bit.

Posted by: Chris | Mar 12, 2008 8:34:07 PM

Rick --

Thanks for the hat tip. Here's my initial reaction to your posting:

In the JELS study that you mention, my co-author and I do indeed find that (at least some) ordinary citizens care about federalism, in the sense that they would be willing to forego congressional action they otherwise support on the merits in order to protect their view of the proper allocation of state / federal power. (I should note that ordinary citizens don’t normally take federalism into consideration spontaneously – which is not all that surprising; we found that they needed elites to remind them of the issue in order to activate this concern.)
So, that begs the question (as you pose it): why aren’t the presidential candidates talking about the federalism cases now before the Court? The problem is that you need to distinguish between the issues now before the Court and federalism more generally.

First, the underlying issues before the Court -- state deceptive advertising claims, use of state funds for labor related speech, divorced spouse’s rights to insurance, and so on – are irrelevant or pretty unimportant to the vast majority of voters (and, probably most lawyers as well). In other words, most voters simply don’t care about these specific disputes, period. Inattention to federal policies like these does pose a problem for any political safeguards theory – and hence, might justify some form of judicial oversight – but it doesn’t mean that citizens don’t care about federalism. (It would be crazy to say that because no one is talking about Kennedy v. DuPont no one cares about divorced spouses’ rights, or divorce, or marriage, or the family.) It might be better to look at debates over the specific policies citizens do care about (mortgage assistance, recognition same sex marriage, etc.) and ask whether federalism plays a role there. (And indeed, in the 2004 race, federalism seemed to play a fairly prominent role in debates over same sex marriage.)

Second, citizens may not care as much about the federalism issues before the Court as they do about federalism issues facing Congress. Voters may feel that they cannot influence what the Court does. But they can control Congress, so federalism could play a more prominent role in public discourse once Congress has an opportunity to respond to these cases.

Anyway, it's possible federalism could emerge in the 2008 if, for example, the California Supreme Court follows the SJC's lead in Massachusetts and recognizes same sex marriages. This would undoubtedly spur calls in Congress to pass some legislation or a constitutional amendment to ban same sex marriage and the candidates would have to take a stand on the issue.

I have another paper out – also on SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=984264 – that explores some other reasons why citizens may be leery of expanding federal power (even if they are not thinking about abstract theories of federalism).

Posted by: Rob Mikos | Mar 12, 2008 4:54:01 PM

Prof. Hills, this is off topic, but I wanted to ask whether you would be willing to use a post here at Prawfs to flesh out (at least to some extent) the remarks you made about Article V at the symposium last weekend, if that's something you haven't covered elsewhere?

Posted by: Simon | Mar 12, 2008 4:27:02 PM

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