Foundations of American Legal Thought Public Lectures Series, Consumer Information (ABA Required Disclosures), Wednesday, February 1, 2017 at 12:10PM - 1:00PM. sector responsibilities, though they can play as governments collaborate with data-driven Similarly, even if congressional Republicans succeed at neutering the Consumer Financial Protection Bureau, many of its rules will remain in effect, and state attorneys general will be able to enforce them. governments and their local governments to She chairs the Blum Center for Developing Economies Board of Trustees. Even as trust in the federal government The odd thing about the progressive case for local power is that it is utterly familiar to those on the ground. 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. We'll send periodic reminders of what's new and what's coming. In place of what some call the politics of presence, we have the politics of power. Under President Trump, most federal government Critical distinctions get lost when we treat these issues as debates about segregation versus integration. Without those local actors, the feds cannot enforce immigration law, implement environmental policy, build infrastructure, or prosecute drug offenses. Everyone ought to experience, in the words of President Bush, a good thumpin.. and private sectors, drawing and building on The Obama administration used all of these tools to encourage innovation and local design in These lawsuits often reach beyond Californias borders, allowing city and state officials to play a role in shaping nationwide policy. We have made progress on both fronts, but there is a great deal more work to do. Some early state and local battles were lost, but same-sex marriage proponents used those fights as staging grounds for organizing and debate. trust in government institutions and elected Uncooperative federalism wont work for everything progressives care about. 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. Decentralization will produce policies that progressives adore, and it will produce policies that they loathe. As mentioned, many think of federalism as a means of entrenching the worst aspects of our politics. . The call for progressive federalism is not a new one. What made the story unusual was that the plans author was Ernie Chambers, the only African American in Nebraskas legislature and a long-time civil rights advocate. But everyday politics can be just as important for pursuing these goals. programs. Federalism is principally the theory by which political power is divided between a national and state government, each having their own clear jurisdiction. Indeed, the unprecedented legal campaign being waged by Democratic state officials against the Trump administration will actually diminish the authority of states to . Democracy: A Journal of Ideas, Inc. All right reserved. Similarly, states can thwart federal mandates by insisting on following the law to the letter. health, preschool and K-12 education, and skill Designed by Arsenal, developed by Hop Studios. false Which of the following is an implied power of the federal government? We have long thought that minority rights further economic and political integration. the delivery of federal programslinking billions So instead they started localfirst in Hawaii, then in Massachusetts, then in San Francisco. populism. approach can encourage the local sourcing of 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. Cities, too, have an uncooperative role to play, especially in the immigration context. The Progressive Resurgence of Federalism. and uncooperatively to resist national policies can nonprofits, philanthropic organizations, or States and municipalities have a lot of power to challenge Washington. Gone are the days of policy-making enclaves shielded from national power. We have long understood minority rights as furthering those goals, which is why we care so much about them. Liberals are often concerned that federalism leaves too many people behind. Federalism is a form of political organization that seeks to distinguish states and unites them, which assigns different types of decision-making power at different levels to allow a degree of political independence in an overarching structure. The first is integrationensuring that our fractious polity remains a polity. Our Constitution outlines aseparation of powersbetween the federal governments three branches. Why does this matter? Sign up for our print edition! A Helsinki Moment for a New Democracy Strategy. Instead, we condemn governing bodies dominated by dissenters as lawless or parochial, as Fordham Law School Professor Nestor Davidson and University of Virginia Law Professor Richard Schragger have both found in their studies of the discourse surrounding local power. Antimonopoly: A Master Narrative for Democracy. People who dont like states rights tend to be dismissive of the 10thAmendment. Young describes the 10thAmendment as reading guidelines for other parts of the Constitution. They were dissenting by deciding. As in the context of race, we often laud minority rights because they can knit political outliers into the polity. of individual states to function as what US In fact, racial minorities and dissenters can wield more electoral power at the local level than they do at the national. Changing policies in these areasand many moreis possible only if cities and states lend a hand. In 1786, people were geographically distributed in populations that at some level didnt trust one another and might not like one another, says Levinson. Gerken, distinguished scholar of progressive the belief of all levels of government working together cooperatively to achieve and solve common problems. Heavily indebted cities and states may find fighting the federal government is too expensive. They enacted tough abortion limitations that forced that issue to the front of the political agenda. In Souters view, the Lithuanian and Polish wards of Chicago and the Irish and Italian political machines in Boston helped empower these groups. will state, city, and local leaders from the public In the worst-case scenario, states threaten secession and it leads to civil war, as it did in 1861. demonstrated success in maternal and child The Department of Homeland Security (DHS)released the first of its name and shame lists lastweek, intent upon intimidating 96 sanctuary cities towns, cities and counties that refused requests from Immigrations and Customs Enforcement (ICE) to detain undocumented immigrants in order for federal agents to pick them up. In the antebellum period, he points out, national power was biased in favor of slavery and the federal government imposed theFugitive Slave Act. We suspect that most progressives arent even aware that the Democrats have lost 27 state legislative chambers since 2008. That is why the term states rights is to this day a dog whistle for racists. We have long associated minority rights with material advancement and expressive dignity for people of color. Thats why President Trump has a lot more incentive to compromise with Democrats in Sacramento than with those on the Hill. In their view, these programs came about precisely because blacks were able to elect their candidates of choice in majority-minority districts. To be sure, uncooperative federalism will not always result in a progressive victory. Such a strategy would be impossible without the hard-won battles of the civil rights movement. Decentralization gives political outliers one of the most important powers a dissenter can enjoythe power to force the majority to engage. Our national system is notoriously sclerotic. It was states rightsthat attempted to protect the abolitionists. And this has allowed them to not only take advantage of the enormous power that federalism confers within their own cities and states, but to affect national debates, influence national policy, and force national actors to the bargaining table. The definition of dual federalism primarily concerns the balance of power between the two governing. Progressivism holds that it is possible to improve human societies through political action. Working through state and local institutions to enact progressive ideas is just as important as opposing Washingtons agenda. In a coda to the decision upholding the constitutionality of the Acts individual mandate, Chief Justice John Roberts (with six other Justices in agreement), held that the Obama Administration could not force states to expand Medicaid by threatening to strip them of all Medicaid funding. The Affordable Care Act, for example, has its origins in Massachusetts, where it was enacted by then-governor Mitt Romney. laboratories of democracy, experimenting The decisions issued in San Francisco and Massachusetts didnt just put to rest a variety of dire arguments about what would happen if same-sex couples were allowed to marry. contracts, competitions, and prizes. Racial minorities and dissenters are using that electoral muscle to protect themselves from marginalization and promote their own agendas. But so, too, did the decisions of San Francisco and Massachusetts to issue same-sex marriage licenses to gay couples. California is an unusual state. But progressives would be foolish to treat cities and states as nothing more than enclaves sheltered from national policies they dont like. An emphasis on minority rule isnt intended to denigrate the importance of minority rights. When Congress makes a law, it often lacks the resources to enforce it. Take climate change: From green building codes to cap-and-trade, the bulk of the work on the issue is being accomplished outside of Washington. And local politicians will always have to devote time and resources to addressing local concerns. 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. and for the role of government in cross-sector 2 The Rationale for Federalism federal system. Even though our highly decentralized system offers numerous examples of dissenters wielding local power, our basic understanding of dissent is built around the assumption that dissenters dont have the votes to win. If progressives are simply looking for guaranteed wins, its not decentralization that they should worry aboutits democracy. The costs seem too great. During the next four years, many of the Presidents actions will be hard to counter. Instead, theyll simply announce that they wont enforce the law, just as the Obama Administration has done with certain marijuana and immigration laws. 20th May 2018 By Brandon Adams. Minority rule can serve precisely the same ends. Diversity guarantees that racial minorities are always in the minority for every decision where people divide along racial lines. ------------------------------------------, The Department of Homeland Security (DHS), a stronger centralized government and a national bank, struck down the Medicaid expansion provision. They can achieve the same results by diligently heeding every safety and quality control regulation so that factories grind to a halt. Because of this, Washington cant go it alone. more transparent and accountable delivery "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. When Texas insisted that its textbooks question evolution, for instance, its market power ensured that textbooks used in blue states did the same. Indeed, this notion resonates entirely with the lesson of the civil rights movement. The problem is that progressive views on dissent exhibit the same shortcomings as our discourse on race. cities and other local governments. It allows the usual winners to lose and the usual losers to win. progressive to federalism, my main point is that federalism doesn't have a political valence. Both can help further equality and nurture dissent. be slashed. Todays federalism involves a muscular national government that makes policy in virtually every area that was once relegated to state and local governments. This arrangement creates opportunities for federal-state cooperation. If progressive leaders hold their ground, they can shield their constituents from the policies they most oppose, and maybe even force compromise. Here, liberal municipalities might take guidance from Portland, Oregon. Federalism and localism, in contrast, depend oneven glory inthe idea of minority rule. If President Trump spends enough political capital, hell surely win some of his battles against blue cities and states. And they liberalized gun regulations at a time when the national consensus seemed poised to shift the other way. is an expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law School. the damage by becoming more powerful crosssector Using the power they wield in states and cities across the country, progressives can do a good deal more than mourn and obstruct. Article I, for example, lists Congress enumerated powers and anytime theres a list says Young, lawyers will ask if it is exclusive or representative. Consider car emissions. How Bidens fight against monopoly can guide his party to victory, and empower American to build a truly better future. Small-government conservatives, on the other hand, more frequently advocate for federalism to uphold power centered in the states. Which is the best definition of federalism? Why? But he cannot win the war. Croson Co. (1989) that a minority set-aside program is more constitutionally suspect because it was enacted by a black-majority city council. Amendment: The powers not delegated to The point here is that progressives can fight for their causes in our current system, and they can win. When dissenters wield local power, they can no longer jeer from the sideline. The former made headlines in December by boldly claiming that California would launch its own satellites if the federal government abandoned its climate research. 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. 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. It was trying to elbow out a little space for the federal government to exist too. The result, he says, was a rough balance between the government and constituent states, and at each level there is a huge range of divisions of power. When either the states or the national government thinks the other is overstepping its authority, it turns to the judiciary, which serves as a referee. If enough cities do so, theyll affect inequality far beyond their borders. We laud diversity on the grounds that racial minorities bring a distinctive view or experience to democratic decision-making. Read more stories by Laura D. Tyson & Lenny Mendonca. education, climate change, and health insurance. 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. Southern politicians claimed the federal government was exceeding its power, and they used states rights as a shield to deny black citizens basic rights, says Mack. federal government and about basic standards Jefferson, an educated owner of 10,000 acres and 200 slaves, wanted the country to remain a nation of farmers in control of their own destinies (and of the grim fates of their slaves) and he advocated for maintaining strong state power. red and blue states; among cities, states, and Supporters of same-sex marriage spent many years exercising their First Amendment rights. We often forget that the federal governments administrative capacity is modest, relatively speaking. By closing this banner, scrolling this page, clicking a link or local level is essential in such critical areas as 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. Unfortunately, the moment one mentions federalism many progressives stop listening. 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. In a progressive federalist approach, the federal We dont mean to suggest that federalism is a cure-all for either progressives or conservatives. important partnership roles in researching, The political principles . Yale Law Democrats, Nondiscrimination, Title IX, and Clery Act Statements, 26th Annual Liman Colloquium - Budgeting for Justice: Fiscal Policy & Monetary Sanctions. The 2016 election year may be remembered Its hard to see the case for majority-minority institutions because the diversity paradigm offers such a deeply intuitive vision of fairness. Thats because its hard for progressive issues to get traction these days. Spillovers, like federalism, arent just the tools of conservative governments. And its not just history that blinds us to the possibilities associated with decentralization and minority rule; our very idea of equality inspires wariness. federalism, argues, progressives can respond to President Trump and congressional gridlock The most remarkable example in recent years has been the same-sex marriage movement. It contrasts with a unitary government, in which a central authority holds the power, and a confederation, in which states, for example, are clearly dominant. 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. That option is simply unavailable when dissenters use local power to issue a decision. Its 2015 budget (excluding defense, Social Security, and mandatory spending obligations) was less than $600 billion. Iconic measures like the First and Fourteenth Amendments, the Civil Rights Act, and the Voting Rights Act all offer rights-based protections for minorities. using the subnational governments in the US handle problems. Its easy to dismiss this allegation in hindsight, but I must confess that when I was in Cambridge on the day that Massachusetts began marrying same-sex couples, I assumed that thousands of protestors would be bussed into the city. Minorities get a chance to forge consensus and to fend off dissenters. We talk about the dignity of political participation but wrinkle our noses at the idea of political patronage. Ours is a world in which decision-making bodies of every sort (school committees, juries, city councils) are dominated by groups of every sort (Italians and Irish, Catholics and Jews, Greens and libertarians). When progressives turn to governance, however, they crave administrative efficiency, worry about local incompetence, and have a strong impulse to quash local rebellion. Spending time and money to crack down on marijuana, for example, takes resources away from fights over immigration or climate change. 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. They can use all the tools weve suggested to encourage moderation and reshape the national conversation. It allows progressive states to help set the federal agenda by forcing debates that conservatives would rather avoid and by creating incentives for compromise. Sign up for our email newsletter! 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. Minority rule, in sharp contrast, turns the tables. While we fashion this as a progressive users guide, it could, in theory, work just as well for conservatives should they lose the presidency in 2020. And, in doing so, we hope to persuade even the most fervent nationalist to become a fan of federalism. of programs and services, bolstering citizen
The effects of turning the tables are not, of course, confined to racial minorities. is a third-year student at Yale Law School. closure of approaches that dont work and scaling State and local Consistent with the view of many progressives, the liberal justices treat the creation of such districts as a mildly distasteful strategy for ensuring a diverse legislature. (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.) These days, state and local governments are often led by dissenters and racial minorities, the two groups progressives think have the most to fear from federalism. challenge grants, pay-for-performance These sorts of bold pronouncements are not mere bluster. Democracyis an independent organization. Its harder still to get somethinganythingdone in Washington. Heres how they can put it to use. It is not hard to figure out why. It empowers those who will oppress them. The Trump agenda is largely deregulatorycoal companies and Wall Street alike are looking forward to less federal regulation and enforcement. Each district was racially heterogeneous, but one was predominantly black, one predominantly Latino, and one predominantly white. Professor Gerken and Professor Schleicher will discuss how states and local governments can become centers of empowerment for progressives, and just how much momentum left-leaning states can maintain under the Trump Administration in areas like welfare/social services, the environment, education, and immigration, among others. Cities can create spillovers, too.
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