What does federalism have to do with the administrative state, and vice versa? Everything. Statutes typically confer authority on a federal agency (or several) in the first instance. However, practically all federal regulatory programs are “cooperative,” meaning they’re implemented by state and local officials. Entitlement programs from Medicaid to education are likewise run through states. So states will participate in the federal agencies’ process. Federalism isn’t shaped in once-in-a-generation enumerated powers cases; it’s shaped in millions of daily administrative interactions. How does that work?
The effects of the vote on Scottish Independence, like the French Revolution, will not be contained within its borders. Whatever the outcome in Scotland, its referendum will reverberate across Europe, energizing the many culturally homogeneous peoples who view themselves as trapped within distantly governed and soulless nation states. The consequences will likely be the creation of more nation states within Europe and certainly more devolution to subunits within nation states. It is a revolution of both cultural solidarity and political subsidiarity.
The European Union, European peace, and the affluence and anonymity of the globalized market economy are the tinderbox for the coming conflagration.
Last Fall, the excellent Jim Fleming (Boston University Law School) organized a fun conference on “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.”
Part of the conference was a panel inviting Sotirios A. Barber (Notre Dame) and yours truly to critique each other’s books on federalism—respectively, The Fallacies of States’ Rights (Harvard UP, 2013) and The Upside-Down Constitution (Harvard UP, 2012). Both of us took the assignment quite seriously.
Let’s just say there’s not a lot of common ground; it’s a rather pointed exchange. To my mind, though, the colloquy illustrates the high utility (as well as the entertainment value) of the bilateral critique format, which I think Jim Fleming invented. Kudos.
What struck me on flipping through the essays for purposes of this post is just how much of a game changer the ACA has been, or become.
Staid old Gallup knows how to get attention. Its Presidential Job Approval Center recently announced a new report with the provocative title: U.S. Muslims Most Approving of Obama, Mormons Least. The full results of this extraordinarily large sample of 88,000 interviews showed an even more dramatic division. Majorities of Muslims (72 percent), other non-Christians (59 percent), Jews (55 percent) and atheists (54 percent) supporting President Obama faced Catholics (51 percent), Protestants (58 percent) and Mormons (78 percent) opposing him.
It looks like the basis for a religious war. Then it gets even bleaker.
As the 113th Congress winds to a close, there are a lot of complaints about its lack of productivity, not least from the President himself. The Senate and the House are controlled by different parties and do not agree on much. But the resulting gridlock has one great virtue. It promotes federalism by preventing Congress from preempting the policy choices of the several states.
This effect is all the more important in the modern era, because the Constitution’s original protection of the political space for state policy making—the enumerated powers—has been almost entirely destroyed. It is true that the Supreme Court slightly revived constraints on the federal government in United States v. Lopez, but the actual effects of that revival have been more symbolic than consequential. On economic matters, as a matter of positive law rather than the original meaning of the Constitution, the federal government enjoys almost plenary powers.
But happily federalism is also protected by the difficulty of enacting federal legislation—which is more than a parchment barrier. Federal laws can be only be enacted with the agreement of both Houses and the President. This requirement in effect creates a mild supermajority rule, making it harder to enact legislation to preempt the states at a time, like now, when the nation is closely divided between the parties.
For fans of federalism, this division has a silver lining that outshines the clouds of partisan rancor.
This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.”
Last week the Supreme Court decided Bond v. US, which raised the issue whether a federal statute, justified as an attempt to give effect to a treay, could reach local behavior. While the Court held that the statute did not reach the local conduct based on the federalism canon of statutory contruction, I am interested in the related constitutional issues. Justices Scalia, Thomas, and Alito all believed that the statute reached the local conduct and therefore discussed the constitutional issues.
There are two basic questions raised by these justices’ discussion: (1) Whether it is constitutional for a treaty to be made that does not involve international issues, but only domestic matters?; (2) Whether it is constitution for a statute to be passed that exceeds Congress’s enumerated powers and therefore can only be justified as necessary and proper to the Treaty Power?
In the decision, Justices Scalia and Thomas both answered no as to both issues. Justice Alito answered no as to issue 1, saying nothing about issue 2. I thought I would briefly discuss each of these issues. In this post, I discuss the first issue: The Scope of the Treaty Power. (I should note that I am not an expert in this area and therefore my remarks here should be taken as preliminary.)
What is the scope of the treaty power? What subjects can it address? There are three leading positions:
The Treaty Power is limited by the enumerated powers of the federal government.
The Treaty Power is limited by the traditional subjects of treaties – that is, international matters.
The Treaty Power is essentially unlimited, extending to any subject the US and another country want to enter into a treaty about.
I’m often asked whether it’s challenging to be a Jewish professor at a Catholic college that takes its religious identity seriously, to which my answer is, first, no, and, second, I certainly prefer it to being a Jewish professor at a Catholic college that takes its religious identity casually. In any event, my contributions to the institution’s Catholicity through participating in its intellectual life are warmly welcomed, and to the extent I am involved in ritual events, I treat them like I would treat being a guest in someone else’s home. Still, my colleagues have been accommodating nearly to a fault. In more than one setting, prayers have been ecumenically tailored to my presence—wholly unnecessarily, but considerately nonetheless.
Ilya Somin has posted an essay at Volokh that narrows that gap between our views on the source of the moral obligation to obey the law—I certainly agree, for example, that there are exigent circumstances in which one might be not merely entitled but obliged to disobey—but our underlying disagreement persists: whether the calculation itself is an individual or a political one.
What is wrong with America? It does not seem to work anymore. Low employment, static wages, burdened business, persistent poverty, destructive lifestyles, exploding debt, threatened entitlement bankruptcy, and stagnation generally seem to be its future, following the path to decline set by Old Europe the century before.
It may seem peculiar that a peace treaty signed in 1648 might hold the answer.