Negotiating conflict through federalism: Institutional and popular perspectives

Yale Law Journal

Volumn 123, Issue 6, 2014, Pages 2094-2133

  Rodríguez, Cristina M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 84898655218     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (145)

1. In describing federalism as consisting of constant negotiation, my thinking aligns with recent scholarship showing that the relationships among institutions are not fixed but rather evolve as necessity demands. As other scholars increasingly have begun to explore in varied regulatory settings, the levels of government set each other's agendas and help constitute each other's abilities to act through constraints that are as much political as legal. See ERIN RYAN, FEDERALISM AND THE TUG OF WAR WITHIN (2012)
2. Abbe R. Gluck, Federalism from Federal Statutes: Health Reform, Medicaid, and the Old-Fashioned Federalists' Gamble, 81 FORDHAM L. REV. 1749 (2013)
3. Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 YALE L.J. 534 (2011) [hereinafter Gluck, Intrastatutory Federalism]; Judith Resnik, Federalism(s)'s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in FEDERALISM AND SUBSIDIARITY: NOMOS LV (James E. Fleming & Jacob T. Levy, eds.) (forthcoming 2014) (manuscript at 1) (on file with author) (arguing that the domains of authority within the federal system "are not fixed but renegotiated as conflicts emerge about the import of rights and the content of jurisdictional allocations"). I and others have taken to heart Rick Hills's observation that what matters most in understanding federalism as a system is understanding how the levels of government work in tandem.
4. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 4 (2007) ("[T]heories of preemption need to accept the truisms that the federal and state governments have largely overlapping jurisdictions, that each level of government is acutely aware of what the other is doing, and that each level regulates with an eye to how such regulation will affect the other.").
5. As Alison LaCroix illuminates in her essay for this Feature, though we might think of court doctrine as setting clear parameters for the political branches, judicial doctrine too is negotiated-the product of shifts in federal power and partisan and ideological dynamics that leave open "opportunities for creative litigation." I take what she describes as the Court's turn to the "shadow powers" of Article I to be an effort to devise new approaches to conceptualizing and sometimes constraining federal power in the wake of a Commerce Clause jurisprudence that leaves the federal government with all the authority to regulate it could want or need. Alison L. LaCroix, The Shadow Powers of Article I, 123 YALE L.J. 2044, 2049 (2014) (arguing that "the battles of judicial federalism are fought not across the welltrampled no-man's-land of the commerce power or the Tenth Amendment, but in the less trafficked doctrinal redoubts of these 'shadow powers'"). These developments add yet another variable into the federal-state negotiation, especially to the extent that the Court has called into question the federal government's power to use the Spending Clause to provide states incentives for participation in federal schemes with its decision in National Federation of Independent Business (NFIB) v. Sebelius, 132 S. Ct. 2566 (2012). The consequences of the shifts she describes for federal regulation are unfolding as we write.
6. Heather K. Gerken, Our Federalism(s), 53 WM. & MARY L. REV. 1549, 1550 (2012).
7. Adam B. Cox, Enforcement Redundancy and the Future of Immigration Law, 2012 SUP. CT. REV. 31, 31-32 (noting that the Court's preemption analysis in Arizona v. United States, 132 S. Ct. 2492 (2012), which rejects state enforcement redundancy, does not apply to other areas of state regulation).
8. As Jessica Bulman-Pozen has persuasively argued, the federal system provides a kind of scaffolding for partisan debate. See Jessica Bulman-Pozen, Partisan Federalism, 127 HARV. L. REV. (forthcoming 2014) [hereinafter Bulman-Pozen, Partisan Federalism]. In her essay for this Feature, she emphasizes the unity of state and federal interests and argues that the fault lines between state and federal governments are no longer so great, because the levels of government are united by politics and the demands of administration.
9. Jessica Bulman-Pozen, From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism, 123 YALE L.J. 1920, 1932-33 (2014) [hereinafter Bulman-Pozen, Afterlife]. This observation certainly strikes me as correct in historical perspective, and an important element of the negotiation I describe is identification by federal and state actors of points of common cause and mutual advantage. As I explore throughout this essay, however, institutional interests drive the federalism dynamic, too, and even when governments align politically, those interests often lead to divergent conclusions about how power should be wielded.
10. Cristina M. Rodríguez, Federalism and National Consensus (Oct. 2013) (unpublished manuscript) (on file with author).
11. Robert D. Cooter & Neil S. Siegel, Collective Action Federalism: A General Theory of Article I, Section 8, 63 STAN. L. REV. 115 (2010), which rejects the economic/non-economic activity distinction drawn by the Supreme Court on the ground that neither the federal nor state governments are necessarily better at regulating one or the other, and proposes a theory of federal power as directed at solving collective action problems generated by inter-state externalities and national markets.
12. Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008).
13. Of course, the fact that state and local power to regulate immigration might be limited cannot be escaped-the Supreme Court's 2012 decision in Arizona underscores the importance of sovereignty to the debate over immigration regulation.
14. As Alison LaCroix's work suggests, this conception of federal power differs from the original design, according to which the Framers of the Constitution sought to create a union, with its own particular general welfare, of which the federal government presumably would be the custodian. See LaCroix, supra note 2, at 2089-90.
15. Rodríguez, supra note 6.
16. For a perspective on how the variety of interests within the federal government intersects with federalism dynamics, see Jessica Bulman-Pozen, Federalism as a Safeguard of the Separation of Powers, 112 COLUM. L. REV. 259 (2011), which argues that states that disagree with positions taken by the Executive Branch attempt to position themselves as faithful agents of Congress, thus splitting open the federal government.
17. Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space, 125 HARV. L. REV. 1131 (2012) (assessing the tools agencies use to resolve coordination challenges and arguing that the challenge calls for strong presidential leadership).
18. For discussion of one such example, see infra notes 27-33, 41 and accompanying text. Gluck, Intrastatutory Federalism, supra note 1.
19. U.S.C. § 1357(g)(1) (2012) (authorizing the Secretary to "enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision... may carry out" the functions of investigating, apprehending, or detaining "aliens in the United States"); id. § 1357(g)(10) ("Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee... to communicate with the [Secretary] regarding the immigration status of any individual... or... otherwise to cooperate with [the Secretary]....") § 1622(a)-(b) (detailing state authority to limit eligibility of "qualified aliens" for state public benefits); id. § 1373(b) (prohibiting state and local governments from preventing their employees from exchanging immigration information with "any other Federal, State, or local government entity"). The comprehensive immigration reform bill passed by the Senate in 2013 would involve state officials in immigration policy in still new ways. For instance, section 4 of the bill would create a Border Security Commission that would include all border-state governors and the governor of Nevada. Together with presidential and congressional appointees, the Commission would recommend a border security strategy should the Department of Homeland Security (DHS) not be able to certify that the border has been "secured" by a certain date. See Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, S. 744, 113th Cong. § 4 (2013). In a similar vein, the FBI oversees myriad law enforcement task forces that rely on state and local police to assist in intelligence gathering, investigation, and other crime-fighting operations. For exploration of some of the legal issues surrounding joint law enforcement operations, see Authority of FBI Agents, Serving as Special Deputy US Marshals, to Pursue Non-Federal Fugitives, 19 Op. O.L.C. 33 (1995). Matthew Waxman describes FBI counter-terrorism task forces in which local law enforcement essentially "work on behalf of the federal government."
20. Matthew C. Waxman, National Security Federalism, 64 STAN. L. REV. 298, 308 (2011).
21. For an example of this process, see infra notes 31-33 and accompanying text, discussing enforcement priorities with respect to marijuana prosecutions. Along similar lines, during the litigation over Arizona's Senate Bill 1070, DHS issued a memorandum detailing the cooperation it sought from state and local police in immigration enforcement and defining state and local action that amounted to non-cooperation. See Guidance on State and Local Governments' Assistance in Immigration Enforcement and Related Matters, U.S. DEP'T HOMELAND SECURITY, http://www.dhs.gov/xlibrary/assets/guidance-state-local-assistance-immigration-enforcement.pdf (last visited Jan. 13, 2014) [hereinafter Guidance on State and Local Governments' Assistance] ("In light of laws passed by several states addressing the involvement by state and local law enforcement officers in federal enforcement of immigration laws, DHS concluded that this guidance would be appropriate to set forth DHS's position on the proper role of state and local officers in this context.").
22. States' and localities' utility as force multipliers has been invoked to justify the enlistment of state and local police in immigration enforcement. See, e.g., Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALB. L. REV. 179 (2005). In her recent work, Gillian Metzger has highlighted how the Obama Administration has taken advantage of federalism to enhance the capacity to regulate.
23. Gillian E. Metzger, Federalism Under Obama, 53 WM. & MARY L. REV. 567 (2011) (detailing regulatory and financial opportunities for states and the move toward more active government at the federal and state levels).
24. Bulman-Pozen, Afterlife, supra note 5.
25. Among the well-documented reasons that Congress delegates authority to the Executive Branch is to shift accountability to administrative actors for making controversial policy decisions or difficult technical choices. See, e.g., DAVID EPSTEIN & SHARYN O'HALLORAN, DELEGATING POWERS: A TRANSACTION COST POLITICS APPROACH TO POLICY MAKING UNDER SEPARATED POWERS (1999). It seems intuitive that a similar dynamic would motivate delegations to states and localities.
26. I explore this decision-making process in detail elsewhere. See Rodríguez, supra note 6 (manuscript at 12-18).
27. Whether Arizona's S.B. 1070 and similar laws present meaningful challenges to the federal government's actual ability to manage its system of immigration arrests and removals remains difficult to gauge. But in its filings in the case, the federal government repeatedly emphasized that "S.B. 1070 cannot be sustained as an exercise in cooperative federalism when its very design discards cooperation and embraces confrontation." Brief for the United States on Petition for Writ of Certiorari at 22, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11-182); see id. at 46. In a guidance document laying out its conception of law enforcement cooperation, DHS made clear that state officials must be "responsive to federal enforcement discretion," such that DHS could exert "control over enforcement" and maintain flexibility to respond to "changing conditions," and that it was not appropriate for state and local governments to adopt their own "set of directives to implement [their own] enforcement policy." Guidance on State and Local Governments' Assistance, supra note 17, at 4.
28. Rooting out racial profiling has long been one of the priorities of the Department and is of heightened concern to the current DOJ. See Civil Rights Div., Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, U.S. DEP'T JUST. (June 2003), http://www.justice.gov/crt/about/spl/documents/guidance_on_race.pdf
29. Matt Apuzzo, U.S. to Expand Rules Limiting Use of Profiling by Federal Agents, N.Y. TIMES, Jan. 15, 2014, http://www.nytimes.com/2014/01/16/us/politics/us-to-expand-rules-limiting-use-of-profiling-by-federal-agents.html.
30. In her essay for this Feature, Jessica Bulman-Pozen notes that, in defending its law, Arizona claimed to be acting in full accord with the law as Congress had written it, thus stepping onto one side of a federal debate. Bulman-Pozen, Afterlife, supra note 5, at 1936. Whether this posture was strategic (to insulate the state law from preemption litigation) or sincere, much of Arizona's enforcement drive was in substance inconsistent with the visions of the Obama Administration and Democratic politicians in the current Congress, and even with the bargains struck by the Congresses that had enacted various provisions of the Immigration and Nationality Act. As the Supreme Court observed in Arizona, S.B. 1070 actually adopted regulatory strategies Congress had rejected, such as criminalizing work by unauthorized immigrants themselves, rather than just the employer's decision to hire. Arizona, 132 S. Ct. at 2503-05.
31. Brief for the United States, supra note 22, at 22.
32. In other aspects of its enforcement policy, the federal government has adopted a similar position. It has chosen, for example, to terminate the 287(g) authority of Sheriff Joseph Arpaio of Maricopa County, whose department also has been found by a district court to have engaged in civil rights violations through racial profiling and enforcement sweeps. See Press Release, U.S. Dep't of Homeland Sec., Statement by Secretary Janet Napolitano on DOJ's Findings of Discriminatory Policing in Maricopa County (Dec. 15, 2011), http://www.dhs.gov/news/2011/12/15/secretary-napolitano-dojs-findings-discriminatory-policing-maricopa-county ("Discrimination undermines law enforcement and erodes the public trust. DHS will not be a party to such practices. Accordingly, and effective immediately, DHS is terminating MCSO's 287(g) jail model agreement and is restricting the Maricopa County Sheriff's Office access to the Secure Communities program. DHS will utilize federal resources for the purpose of identifying and detaining those individuals who meet U.S. Immigration Customs Enforcement's (ICE) immigration enforcement priorities."). Other shifts in federal enforcement strategies reflect a desire to utilize federalism's institutions while keeping its actors at bay. The Secure Communities program, pursuant to which fingerprint data collected from state and local arrests and sent to the FBI is made accessible to immigration officials through interoperable databases, uses information collected by state and local enforcement officials without involving them directly in immigration enforcement. For the government's summary of the program
33. Secure Communities, IMMIGR. & CUSTOMS ENFORCEMENT, http://www.ice.gov/secure_communities (last visited Jan. 22, 2014). See also 8 U.S.C. § 1722(a)(2) (2012) (requiring the President to "develop and implement an interoperable electronic data system to provide current and immediate access to information in databases of Federal law enforcement agencies" to make immigration determinations). Eliminating state and local influence from enforcement will be difficult, however; local law enforcement that might have an immigration agenda could in theory still make arrests to advance that agenda; for example, they could make arrests for minor offenses such as traffic violations in order to funnel certain people into the immigration system.
34. Anil Kalhan, Immigration Policing and Federalism Through the Lens of Technology, Surveillance, and Privacy, 74 OHIO ST. L.J. 1105, 1109 (forthcoming 2014) (noting the vast expansion of state and local involvement in immigration policing that is resulting from Secure Communities and the corresponding elimination of choice by states and localities as to their participation).
35. As of November 2012, eighteen states and the District of Columbia have enacted measures that effectively decriminalize the use of marijuana for medicinal purposes by exempting "qualified individuals" from prosecution. TODD GARVEY, CONG. RESEARCH SERV., R42398, MEDICAL MARIJUANA: THE SUPREMACY CLAUSE, FEDERALISM, AND THE INTERPLAY BETWEEN STATE AND FEDERAL LAWS 1 (Nov. 9, 2012), http://www.fas.org/sgp/crs/misc/R42398.pdf.
36. COLO. CONST. art. XVIII, § 16; see also id. § 16(1)(a) ("In the interest of the efficient use of law enforcement resources, enhancing revenue for public purposes, and individual freedom, the people of the state of Colorado find and declare that the use of marijuana should be legal for persons twenty-one years of age or older and taxed in a manner similar to alcohol.").
37. WASH. REV. CODE § 69.50.401(3) (2013) ("The production, manufacture, processing, packaging, delivery, distribution, sale, or possession of marijuana in compliance with [the legalization initiative] shall not constitute a violation of... any... provision of Washington state law.").
38. For a comprehensive discussion of the federalism implications of state marijuana decriminalization Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime, 62 VAND. L. REV. 1421 (2009).
39. That notice may have been less than clear. The memo issued by Deputy Attorney General David Ogden in particular appears to have induced a naïve reliance by eventual federal defendants, who believed the federal government's articulation of its intent to exercise discretion amounted to a kind of immunity from federal prosecution. See, e.g., United States v. Hicks, 722 F. Supp. 2d 829, 833 (E.D. Mich. 2010) (observing that "[t]he Department of Justice's discretionary decision [in the Ogden memorandum] to direct its resources elsewhere does not mean that the federal government now lacks the power to prosecute those who possess marijuana," and that Department officials' statements "cannot be construed as affirmatively representing to Defendant that he is now authorized to possess or use marijuana under federal law"); United States v. Stacy, 696 F. Supp. 2d 1141, 1149 (S.D. Cal. 2010) (finding that "federal prosecuting authorities are free to investigate or prosecute individuals if, in their judgment, there is reason to believe that state law is being invoked to mask the illegal production or distribution of marijuana" and that there would in any case be no grounds "for dismissing an indictment because it is contrary to internal Department of Justice guidelines"). Even public statements by the Attorney General have given rise to such reliance, but the courts have rejected entrapment by estoppel claims based on those statements. See Stacy, 696 F. Supp. 2d at 1147 ("Holder's statement that the Justice Department 'had no plans' to prosecute pot dispensaries that were operating legally under state laws was a loose statement that left open the possibility the Justice Department could change its 'plans' or could choose to prosecute medical marijuana dispensaries on a case-bycase basis.").
40. James M. Cole, Deputy Att'y Gen., to U.S. Attorneys, Guidance Regarding Marijuana Enforcement 2 (Aug. 29, 2013), http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.
41. ("In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten... federal priorities... In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state laws by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.").
42. In addition to the so-called 287(g) agreements that enable state and local officials to perform federal immigration functions, 8 U.S.C. § 1376(g) (2012), the law delegates authority to states to make judgments concerning benefits eligibility for noncitizens, and federal removal law itself depends on state criminal law predicates, which of course vary across jurisdictions on their face and in their enforcement, such that removal policy itself is not uniform. For recent literature documenting how criminal law enforcement choices made by state and local actors affect the federal agenda by determining who is eligible for removal in ways that reflect local preferences and values, see, for example,
43. Ingrid V. Eagly, Criminal Justice for Noncitizens: An Analysis of Variation in Local Enforcement, 88 N.Y.U. L. REV. 1126 (2013)
44. Hiroshi Motomura, The Discretion that Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line, 58 UCLA L. REV. 1819 (2011).
45. The decision to delegate, the form of delegation chosen by Congress, and the extent of the Executive Branch's use of the delegation option will be in large part a function of politics and not just institutional interest. For instance, a Republican Congress introduced the 287(g) program into the Immigration and Nationality Act in 1996, amidst a series of reforms designed to strengthen enforcement and limit access to benefits by noncitizens, all of which were signed by President Clinton as part of a larger triangulation strategy to help assure reelection in a tough political environment. See, e.g., Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-3546 (codified in scattered sections of U.S.C.) (making removal more expeditious); The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections of U.S.C.) (denying lawful permanent residents access to certain means tested benefits and authorizing states to deny state benefits); Anti- Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified in scattered sections of U.S.C.) (constricting habeas review, expanding deportation grounds, and narrowing discretionary relief). Not coincidentally, the federal bureaucracy did not start entering into 287(g) agreements in significant numbers until after September 11, 2001, and under the Republican Bush Administration.
46. Cristina Rodríguez et al., A Program in Flux: New Priorities and Implementation Challenges for 287(g), MIGRATION POL'Y INST. 3 (2010). Though the current Administration has not eschewed this strategy, it has clipped the authorities of certain local officials and shifted its attention to Secure Communities. See supra note 26.
47. No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425 (codified at scattered sections of 20 U.S.C.).
48. David J. Barron & Todd D. Rakoff, In Defense of Big Waiver, 113 COLUM. L. REV. 265, 279-81 (2013) (describing the waivers, their statutory basis, and the alternate requirements imposed on states receiving them).
49. MICHAEL S. GREVE, THE UPSIDE-DOWN CONSTITUTION (2012).
50. The implementation of the Affordable Care Act arguably reflects the pathology of delegation strategies. Both the refusal by numerous states to create their own insurance exchanges and to accept federal money to expand the coverage of Medicaid suggest the inefficiencies of relying on state bureaucracies to accomplish federal ends, not only because supervision of those bureaucracies will be challenging, but more importantly because partisan politics will always threaten to scuttle well-laid technocratic plans.
51. That the federal government understands an ongoing need to conceptualize its power with awareness of state and local interests is highlighted by the fact that the current Democratic administration purports to respect states' concurrent authority, as well as the possibility that states have often done a better job of advancing the public welfare than the federal government (though of course the definition of public welfare is up for debate). See Memorandum on Preemption, 2009 DAILY COMP. PRES. DOC. 384, at *1 (May 20, 2009) ("The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government."). For an exploration of how this has played out in practice
52. Catherine M. Sharkey, Inside Agency Preemption, 110 MICH. L. REV. 521 527-29 (2012) (considering agency responses to the President's memorandum calling for attention to state interests). In exploring federalism under the Obama Administration, Gillian Metzger cites the government's interest in providing states with opportunities to regulate in order to expand the capacities of government. See Metzger, supra note 18, at 598-610 (detailing regulatory and financial opportunities for states and the move toward more active government at the federal and state level).
53. A stark example of the potential for internal disagreement is the lawsuit brought by Immigration and Customs Enforcement agents challenging the Deferred Action for Childhood Arrivals policy adopted by DHS Secretary Janet Napolitano as a statement of Department enforcement priorities. This conflict underscores that federal agents in the field often take issue with the politically driven shifts in policy initiated by political appointees and bureaucrats centered in Washington. For a discussion of the claims made in the lawsuit, see Crane v. Napolitano, 920 F. Supp. 2d 724, 730-31 (N.D. Tex. 2013) (granting in part and denying in part the government's motion to dismiss); Crane v. Napolitano, No. 3:12-cv-03247-O, 2013 WL 1744422 (N.D. Tex. Apr. 23, 2013) (deferring ruling on preliminary injunction); and Crane v. Napolitano, No. 3:12-cv-03247-O, slip op. at 7 (N.D. Tex. July 31, 2013), http://www.law.uh.edu/ihelg/documents/Crane207-31-13.pdf (dismissing plaintiffs' claims for lack of jurisdiction).
54. Rodríguez, supra note 8.
55. Memorandum on Extension of Benefits to Same-Sex Domestic Partners of Federal Employees, 2010 DAILY COMP. PRES. DOC. 450, at *1 (June 2, 2010) ("[S]ystemic inequality [in the provision of benefits] undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities," such that administrative action should be taken "to the extent permitted by law," even though "legislative action is necessary to provide full equality.").
56. The basis for the Court's invalidation of DOMA is difficult to pinpoint, as the Court's opinion veers between equal protection and federalism rhetoric throughout. But whether federalism concerns constituted a basis for the holding (I argue elsewhere the opinion turned on Fourteenth Amendment analysis, see Rodríguez, supra note 6 (manuscript at 34-36)), the challenge to the federal statute arose and became publicly salient because of the rapid progression of same-sex marriage through the states in the last decade.
57. For the DHS position on the matter, see Implementation of the Supreme Court Ruling on the Defense of Marriage Act, U.S. DEP'T HOMELAND SECURITY, http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act (last visited Jan. 23, 2014) (quoting former Homeland Security Secretary Janet Napolitano's statement that "effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse"). For the adjudication of the issue by the Board of Immigration Appeals within the Department of Justice
58. Oleg B. Zeleniak, 26 I. & N. Dec. 158, 159-60 (2013) ("The Supreme Court's ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated.... The Director has already determined that the petitioner's... marriage is valid under the laws of Vermont, where the marriage was celebrated.").
59. In his statement announcing the decision, the Attorney General framed it as another step on the road to equality and declared that families consisting of same-sex spouses should not be asked to endure uncertainty as litigation unfolds. See Statement by Attorney General Eric Holder on Federal Recognition of Same-Sex Marriages in Utah, U.S. DEP'T JUST. (Jan. 10, 2014), http://www.justice.gov/opa/pr/2014/January/14-ag-031.html. From his point of view, it was enough for a federal district court to have declared the state's prohibition on same-sex marriages unconstitutional to create a state-law status the federal government could recognize for its own ends.
60. In a statement issued on January 9, 2014, the Attorney General of Utah recommended that county clerks provide marriage certificates to all persons married before the district court order was stayed, "as an administrative function and not a legal function," in part so samesex couples could have "proper documentation in states that recognize same-sex marriage." Attorney General Sean D. Reyes Counsels County Attorneys and County Clerks in Utah, UTAH ATT'Y GEN. (Jan. 9, 2014), http://attorneygeneral.utah.gov/2014/01/09/attorney-general-sean-d-reyes-counsels-county-attorneys-and-county-clerks-in-utah. This statement could mean that the state recognizes the marriages in question, at least on some level, even if state benefits do not flow from that recognition. In a statement on January 8, the governor's chief of staff indicated that the state would not recognize same-sex marriages pending final judicial resolution of the issue, though the statement made clear that it was not intended to opine on the legal status of those marriages.
61. Governor's Office Gives Direction to State Agencies on Same-Sex Marriages, UTAH GOV. GARY HERBERT (Jan. 8, 2014), http://www.utah.gov/governor/news_media/article.html?article=9617.
62. In the Presidential Memorandum announcing the government's decision to expand benefits to same-sex partners before it decided not to defend DOMA in court, the President emphasized that the "systemic inequality [in the provision of benefits caused by DOMA] undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities." Memorandum on Extension of Benefits, supra note 43, at *1.
63. This perspective provides a different spin on yet another role claimed for the federal government by commentators-that the central government ought to, or will want to, protect states from one another by policing their imposition of externalities or spillovers on their neighbors through judicial or legislative preemption or ad hoc executive action. The Department of Justice has articulated preventing diversion of marijuana to jurisdictions that have not legalized it as among its enforcement priorities, for example. See Memorandum from James M. Cole, supra note 32, at 1. Given that the federal government can have an interest in conflict, I am skeptical that this interest in horizontal policing stands on its own two feet. Instead, it arises primarily to the extent that the policing of a given externality coincides with the federal government's own interests or policy preferences. Because federal intervention will necessarily require preferring one state's choice to another, the idea that the federal government stands in to protect the integrity of federalism itself makes little sense. Moreover, it may well be the case that the federal government's interests coincide with the imposition of externalities, as may be the case in the marijuana debate and is almost certainly the case with respect to gay marriage. In recent work, Heather Gerken and Ari Holtzblatt make a convincing affirmative case for spillovers of certain kinds.
64. Heather K. Gerken & Ari Holtzblatt, The Political Safeguards of Horizontal Federalism, 112 MICH. L. REV. (forthcoming 2014).
65. For a critique of the notion that the federal government must treat states equally, see Zachary S. Price, NAMUDNO's Non-Existent Principle of State Equality, 88 N.Y.U. L. REV. ONLINE 24 (2013).
66. Ann E. Carlson, Regulating Capacity and State Environmental Leadership: California's Climate Policy, 24 FORDHAM ENVTL. L. REV. 63 (2013).
67. Ann E. Carlson, Iterative Federalism and Climate Change, 103 NW. U. L. REV. 1097, 1099-100 (2009) (exploring how the federal government has effectively chosen certain states to be leaders in experimenting with environmental regulations)
68. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. 1499, 1500-38 (2007) (discussing state environmental regulation and the possibility that states intend to provoke federal action).
69. In Federalism All the Way Down, Heather Gerken highlights the importance of decentrali zedsocial institutions in harnessing the values of decentralized debate, including how they promote dissent and provide minorities with the opportunity to govern.
70. Heather K. Gerken, The Supreme Court 2009 Term-Foreword: Federalism All the Way Down, 124 HARV. L. REV. 4 (2010). In thinking through the value of decentralization to the project of national integration, I also have focused on the role of what I call mid-level social institutions, such as the workplace and the public schools, which need not be state actors but through which critical regulatory and policy decisions that shape our national character are made
71. Cristina M. Rodríguez, Language and Participation, 94 CALIF. L. REV. 687 (2006). Realizing the values of decentralization thus does not require a federal system. Even if the sub-federal institution in question is a public body of a sort, its significance does not necessarily flow from the fact that it is attached to a particular sovereign (e.g., public schools). What is more, within a national system, plenty of agency problems exist such that there will be politically charged, differing views as to policy and implementation questions. Decentralization and its benefits are therefore possible within a unitary system. In this essay, however, I focus on governmental institutions with lawmaking power, in order to focus on power-sharing dynamics and to explore the significance and value of federalism as a system of government, as distinct from decentralization as a governing strategy that will be present to some extent in any complex society. So what is it about federalism, as opposed to decentralization, that is distinctive? Perhaps a federal system's salient feature is the existence of semi-independent, power-wielding structures through which debates and policy decentralization can happen, the results of which will be instantiated in law. Whether to include local governments within a definition of federalism presents a tricky question. Local governments exist in unitary systems, of course, and localities in the United States are creatures of state law. But local governments are governments in that they enact their own laws and engage in their own administration, sometimes consistent with and at other times at odds with their state and federal "masters." See also infra notes 61-66 and accompanying text. For a discussion of the relevance of local government in constitutional interpretation
72. David Barron, Why (and When) Cities Have a Stake in Enforcing the Constitution, 115 YALE L.J. 2218, 2249 (2006) (using San Francisco's challenge to California's marriage laws as a lens through which to consider localist interpretations of the Constitution that seek to "afford cities the space to make their own choices through the practice of local politics").
73. I have discussed this dynamic in the immigration context. See Rodríguez, supra note 8, at 636-40
74. Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959 (2007).
75. Rodríguez, supra note 8, at 576-80.
76. The doctrinal uncertainty Alison LaCroix explores in her essay for this Feature, see LaCroix, supra note 2, underscores that we might expect further constitutional limits on federal power. Their extent will in part depend on whether and how Spending Clause litigation curtails the federal government's power to design regulatory schemes to expand its capacities through the states, or whether the Supreme Court's judgment in NFIB v. Sebelius was specific enough to the Affordable Care Act, which itself contained novel forms of regulation, that the substance of federal power will remain largely unchanged-that is, robust.
77. Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. 93-288, 88 Stat. 143 (1974) (codified as amended at 42 U.S.C. §§ 5121-5207 (2006)). In fact, numerous states have enacted so-called peace officer and state deputation laws, which purport to empower federal officials to make state law arrests in certain circumstances, which the Department of Justice has found to conform to the general rule that federal authority to make arrests must be expressly provided for by law.
78. Virginia A. Seitz, State and Local Deputation of Federal Officials During Stafford Act Deployments, OFF. LEGAL COUNSEL (Mar. 5, 2012), http://www.justice.gov/olc/2012/state-local-fleo-stafford-act-deployments.pdf, 2012 WL 1123840.
79. Gluck, Intrastatutory Federalism, supra note 1
80. Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J. 1256 (2009) (discussing how cooperative federalism schemes put skeptics within the Executive Branch in ways that can challenge and push the development of federal policy). The recent literature on administrative federalism also highlights this dynamic, and much of it emphasizes how state participation in federal administration can work to preserve states' regulatory interests.
81. Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933 (2008)
82. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2080-83 (2008). For a challenge to this point of view and the idea that states retain meaningful autonomy, emphasizing instead that they carry the mantle of federal policy
83. Bulman-Pozen, Afterlife, supra note 5, at 1935-40.
84. In a 2011 study, researchers documented how local law enforcement officials shaped the distribution of detainers issued under the 287(g) program. See Randy Capps et al., Delegation and Divergence: A Study of 287(g) State and Local Immigration Enforcement, MIGRATION POL'Y INST. (Jan. 2011), http://www.migrationpolicy.org/pubs/287g-divergence.pdf. State officials can also take advantage of flexible cooperative schemes to achieve important policy objectives of their own. In January 2011, New York Governor Andrew Cuomo launched a Medicaid Redesign Team to rethink the state's delivery of services under the program, which eventually led the state to seek a waiver from the federal government to pursue its reform goals.
85. A Plan to Transform the Empire State's Medicaid Program: Better Care, Better Health, Lower Costs, N.Y. STATE DEP'T HEALTH 4-5 (May 2012), http://www.health.ny.gov/health_care/medicaid/redesign/docs/mrtfinalreport.pdf.
86. In a recent working paper, Nicole Huberfeld documents that reports of non-participation have been overstated by the media and that many Republican governors are working toward implementation of the Medicaid expansion, despite hostility from state legislators and opposition by the national party. Her account highlights the sort of negotiation that characterizes many cooperative schemes.
87. Nicole Huberfeld, Dynamic Expansion (Nov. 22, 2013) (unpublished manuscript) (on file with author). It also is consistent with dynamics I have highlighted in the immigration context, namely that executive and administrative actors sometimes behave less ideologically than their counterparts in the legislature when addressing the practical realities of phenomena such as illegal immigration.
88. Rodríguez, supra note 8, at 579-90.
89. More problematic from the federal government's point of view is arguably the number of states that have declined to establish insurance exchanges under the Affordable Care Act, leaving the federal government to pick up the slack. Ideological opposition likely accounts for much of this resistance, as does the desire to avoid the regulatory burden.
90. In theory, a field office of a central bureaucracy could do the same, but given a federal government such as ours in which partisanship affects bureaucratic choices-indeed, where the political accountability of the administration is cited as justification for delegation to administrative actors-a federalist structure likely will better serve these ends.
91. Bulman-Pozen & Gerken, supra note 57.
92. In August 2012, Governor Brewer issued an order denying drivers' licenses to recipients of relief under the federal government's Deferred Action for Childhood Arrivals initiative. After being rebuffed on equal protection grounds by a district court for denying DACA recipients licenses, while granting them to recipients of garden-variety deferred action, see Ariz. Dream Act Coal. v. Brewer, 945 F. Supp. 2d 1049 (D. Ariz. 2013), the state opted to level its policy down and deny the benefit to all aliens with the deferred action designation.
93. CAL. S. RULES COMM., BILL ANALYSIS, A.B. 1024, 2013 Sess., at 5, http://leginfo.ca.gov/pub/13-14/bill/asm/ab_1001-1050/ab_1024_cfa_20130911_175859_sen_floor.html (making explicit the intent of the legislature that "all individuals who meet the state law qualifications for the practice of law in California be affirmatively eligible to apply for and obtain a law license regardless of their citizenship or immigration status," thus satisfying the requirements of federal law)
94. CAL. S. RULES COMM., BILL ANALYSIS, S.B. 150, 2013 Sess., http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0101-0150/sb_150_cfa_20130507_104309_sen_floor.html (creating nonresident tuition exemptions for unauthorized immigrant students to participate in concurrent enrollment programs with secondary schools and community colleges)
95. GOV. EDMUND G. BROWN, JR., VETO OF A.B. 1401, 2013 Sess., http://leginfo.ca.gov/pub/13-14/bill/asm/ab_1401-1450/ab_1401_vt_20131007.html ("Jury service, like voting, is quintessentially a prerogative and responsibility of citizenship. This bill would permit lawful permanent residents who are not citizens to serve on a jury. I don't think that's right.").
96. Examples of this sort of value generated by the federal system include the decisions by politicians to openly and loudly reject the Medicaid expansion of the Affordable Care Act, or Arizona's ongoing battle with the federal government over illegal immigration through its refusal to grant drivers' licenses to recipients of Deferred Action for Childhood Arrivals.
97. Bulman-Pozen, Afterlife, supra note 5, at 1952-56 (discussing national movements' work through particular states in the debate over marijuana legalization)
98. Judith Resnik et al., Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008) (describing states as a "collective national force").
99. Heather Gerken argues that one of the virtues of federalism, from the perspective of state and local actors, is that the platform their decision-making authorities provide amplifies the influence or impact of their policies and ideas.
100. Heather K. Gerken, The Loyal Opposition, 123 YALE L.J. 1958, 1980 (2014) (noting also that decentralization "gives dissenters a chance to... show how [a policy] work[s] in practice," which "matters in policymaking").
101. Rodríguez, supra note 8, at 600-05.
102. Chi., Ill., Ordinance SO2012-4984 (Sept. 12, 2012), http://chicagocouncilmatic.org/legislation/1156327 ("The cooperation of the City's immigrant communities is essential to prevent and solve crimes and maintain public order, safety and security in the entire City. One of the City's most important goals is to enhance the City's relationship with theimmigration communities."); id. ("Unless acting pursuant to a legitimate law enforcement purpose that is unrelated to the enforcement of civil immigration law, no agency or agent shall: (A) permit ICE agents access to a person being detained by, or in the custody of, the agency or agency; (B) [give] ICE agents use of agency facilities for investigative interview or other purposes; (C) while on duty, expend their time responding to ICE inquiries."). For an account of the California law
103. Daniel C. Vock, Capping String of Victories for Immigrants, Brown Signs California Trust Act, PEW CHARITABLE TRUSTS: STATELINE (Oct. 7, 2013), http://www.pewstates.org/projects/stateline/headlines/capping-string-of-victories-for-immigrants-brown-signs-california-trust-act-85899510189.
104. Though local governments are creatures of state law and therefore do not fit within a traditional or strictly constitutional conception of federalism, as decision-makers with lawmaking authority and enforcement powers, the arms of local government fit comfortably within the framework of negotiated federalism explored here
105. Nestor Davidson has written about how localities can form alliances with the federal government through cooperative schemes and thereby protect their interests. Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959 (2007). This possibility highlights the numerous forms of competition among governing actors and popular constituencies that arise in federal systems, which makes it challenging to "pick" a preferred level of government. For discussion of how cities should be understood as fitting into federalism frameworks
106. Loren King, Cities, Subsidiarity, and Federalism, in FEDERALISM AND SUBSIDIARITY: NOMOS LV, supra note 1 (manuscript at 3) (arguing that cities are the most important way people experience political decisions)
107. Daniel Weinstock, Cities and Federalism, in FEDERALISM AND SUBSIDIARITY: NOMOS LV, supra note 1 (manuscript at 13-14, 19, 27-30) (calling for greater constitutional standing for cities on various grounds, including that access to knowledge is greater at the local level, that urban density means individuals inter-relate more with one another, and that cities have distinct political cultures from broader society).
108. In Rodríguez, supra note 6, I explore in detail how state courts, moneyed interests, and various forms of association, including political parties, link local sites together in policy conversation, sometimes with a view to federal policy but often with a focus only on the substantive issue at hand. I highlight the work of scholars who have explored these dynamics through a preoccupation with controlling externalities.
109. Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493, 529-60 (2008) (mapping the various constitutional doctrines that structure state-to-state relations)
110. Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1474, 1478 (2007) (calling attention to the fact that "the Court has scarcely addressed the question of Congress's powers in the interstate context" and arguing that such inquiry is vital, because "[s]ome national umpire over interstate relations is essential to ensure union")
111. Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1884-85 (1987) (arguing that the extraterritoriality principle that attempts to regulate states' extraterritorial behavior operates across many bodies of case law but is ill defined and inadequately justified)
112. Mark D. Rosen, Extraterritoriality and Political Heterogeneity in American Federalism, 150 U. PA. L. REV. 855 (2002). But I align my narrative instead with the normative agenda in recent work by Heather Gerken and Ari Holtzblatt, who call for an affirmative account of the value of inter-state spillovers
113. Gerken & Holtzblatt, supra note 49, fundamentally because I believe spillovers will often be both productive and desired by the local jurisdiction into which they flow.
114. For a rich and detailed account of the numerous types of associations of this kind that incorporate governmental actors, see Judith Resnik et al., supra note 67, at 728-33. The associations that fit into this category include the National Governors Association, the National Association of Counties, the National League of Cities, the U.S. Conference of Mayors, the Council of State Governments, and various similar associations organized around party affiliation, regional affiliation, or racial and ethnic identity groups. Id. at 731.
115. These networks take on varying forms. Some are organized as multi-issue umbrella networks, such as the American Legislative Exchange Council (ALEC); others are singleissue, expressly ideological organizations, such as the NRA (though the umbrella organizations also tend to have ideological bents); and still others provide technical support to state and local officials. (Thank you to Alex Hemmer for this typology.) The best known example of the first sort of network-ALEC-has been in operation since 1973 with the goal of working to "advance the Jeffersonian fundamental principles of free-markets, limited government, federalism, and individual liberty among America's state legislators" through "public-private partnership" and has been criticized for receiving most of its contributions from corporations.
116. Corporate America's Trojan Horse in the States: The Untold Story Behind the American Legislative Exchange Council, DEFENDERS OF WILDLIFE & NAT. RESOURCE DEF. COUNCIL 4, 20, 39 (2002), http://alecwatch.org/11223344.pdf. The network has been highly effective at circulating model legislation to state legislatures. For a discussion of the mobilization of these sorts of networks at the state level in pushing abortion restrictions
117. Reva B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008)
118. Miriam Seifter, States as Interest Groups in the Administrative Process, 100 VA. L. REV. (forthcoming 2014) (exploring the federalism implications of trans-local networks).
119. In her essay for this Feature, Jessica Bulman-Pozen highlights an especially salient manifestation of how interests transcend local jurisdictions-the phenomenon of out-ofstate campaign contributions to state and local elections.
120. Bulman-Pozen, Afterlife, supra note 5, at 1953-54. The affiliation voters in one state might feel with politicians in another might signal the gradual disappearance of local interests, though feeling connections with politicians from other jurisdictions is not mutually exclusive with the existence of local identity, even as it highlights a horizontal benefit of federalism in the creation of alliances with other politicians and constituencies.
121. For accounts of such groups' work in the immigration setting and evidence that partisanship in particular explains the emergence of state and local immigration laws Pratheepan Gulasekaram & S. Karthick Ramakrishnan, Immigration Federalism: A Reappraisal, 88 N.Y.U. L. Rev. 2074, 2126-29 (2013)
122. S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of the Political in Immigration Federalism, 44 ARIZ. ST. L.J. 1431 (2012).
123. Government officials and politicians might think similarly, though they also will be motivated to preserve the institutional location of their power.
124. As I explain in more detail below, recent work on immigration federalism highlights the fact that restrictionist immigration measures have been adopted primarily in jurisdictions in which Republicans control the state or locality in question. Gulasekaram & Ramakrishnan, supra note 77, at 2126-29. The networks and norm entrepreneurs that have been shopping such measures around the country, not surprisingly, have found receptive audiences for their policy ideas in parts of the country with particular identities, accomplishing piecemeal through our decentralized system objectives that face greater resistance at the national level, not to mention in Democratic-leaning states. The challenges of enacting national legislation are not only structural, because of the numerous veto gates in the legislative process, but also partisan, because of the presence of a Democratic president and his political appointees at the helm of the federal immigration enforcement bureaucracy. Recent scholarship adds to the picture the possibility that restrictionist activity at the state and local level may in fact stymie reform in Congress. See id. at 2078-82.
125. Noticeably missing from this account of what a system of government should achieve is one of the key benefits claimed in traditional constitutional theory for federalism-the preservation of individual liberty. See infra note 99 (identifying this value as articulated by the Supreme Court in cases such as United States v. Lopez and Alden v. Maine). I am skeptical that any necessary correlation exists between the creation of a system of dual sovereignty and the preservation of liberty, primarily because of the powerful entity the federal government has become. Recent judicial efforts to limit that power to preserve liberty have seemed puny on the ground, and even the very significant curtailment of the spending power in NFIB v. Sebelius has only the vaguest of connections to the protection of liberty. See also Memorandum on Preemption, supra note 40 (recording the President's observation that states and localities sometimes better protect individual liberties than the federal government). More to the point, public opinion and democratic accountability seem like far more meaningful checks on an overweening government. Cf. ERIC POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC (2010).
126. We might just as easily identify a popular interest served by federalism as the interest in deregulation. If the existence of a federal system on balance pushes in the direction of deregulation by leaving social welfare matters in the hands of states, which will be less able and willing to regulate than the federal government, and we believe that private ordering better serves social welfare goals, then federalism serves popular ends, but for reasons different than the ones I have just described.
127. Susan Rose-Ackerman, Risk Taking and Reelection: Does Federalism Promote Innovation?, 9 J. LEGAL STUD. 593, 594 (1980). For a recent assessment of the arguments in defense of the laboratories justification and an affirmation of the skepticism voiced by Rose-Ackerman
128. Brian Galle & Joseph Leahy, Laboratories of Democracy? Policy Innovation in Decentralized Governments, 58 EMORY L.J. 1333, 1334 (2009) (concluding that "there are no demonstrably overwhelming replies to Rose-Ackerman's skepticism").
129. 83. For an argument that subsidiarity, or placing control over policy at the lowest level of government possible, improves the "adaptive efficiency" of federal systems, including by expanding the pool of views in the policy-making process, see Jenna Bednar, Subsidiarity and Robustness: Building the Adaptive Efficiency of Federal Systems, in FEDERALISM AND SUBSIDIARITY: NOMOS LV, supra note 1 (manuscript at 1).
130. In her essay for this Feature, Heather Gerken emphasizes the value of federalism in "making space for oppositional politics," which she lauds as a means of building loyalty in the opposition by giving dissenters the chance to "offer real-life instantiations of their ideas."
131. Gerken, supra note 68, at 1978. In addition to providing more vehicles for the translation of popular ideas into law and therefore into power, this feature of federalism can have integrative functions by satisfying minorities as well as majorities.
132. Citing polling studies done by James Fishkin, Loren King notes that citizens seek to learn more in smaller polities. See King, supra note 72 (manuscript at 20-21).
133. This popular benefit of federalism resembles the claim made by scholars that federalism permits citizens to vote with their feet and thereby engenders competition that will improve the system or maximize people's capacities to live out their preferences. For a recent example of this form of argument, Somin, Foot Voting, Federalism, and Political Freedom, in FEDERALISM AND SUBSIDIARITY: NOMOS LV, supra note 1 (manuscript at 3, 10-14) (arguing that foot voting enables political choice and enables individuals to maximize their freedom by selecting their destiny and that decentralization therefore should be maximized). I am reluctant to embrace this particular approach, though, because it has always struck me as highly implausible given the stickiness of family and other commitments, including to jobs, that trump preference maximization through relocation.
134. Bulman-Pozen, Afterlife, supra note 5, at 1952 (discussing the value of ballot initiatives for creating "a space for lawmaking outside the usual partisan processes").
135. In some instances, the imperatives of enforcement might trump the desire for widespread politics, and the perpetuation of political debates can undermine effective governance. With respect to enforcement capacity, the dynamic does not always flow in the direction of expansion, at least not for the federal government, because sub-federal agents may have different ideas concerning implementation methods and enforcement priorities. What is more, for both the federal and the sub-federal, efforts to cooperate to expand capacity may result in irresolvable conflict or constraints on one or the other's policy preferences. Negotiating these tensions is precisely what is at stake in the negotiation of the federal-state dynamic.
136. Gerken, supra note 68, at 1980.
137. Bulman-Pozen, Afterlife, supra note 5, at 1952 (noting how participation by out-of-state actors in fundraising and campaigning around initiatives "provides a forum for Americans nationwide to participate in political contests that may fall outside of national party politics," even though only state voters ultimately decide the fate of direct democracy initiatives).
138. Another way to frame this central demand of a federal system, familiar to constitutional theory, is as the need to determine when outliers ought to be forced to cede to a higher-level consensus-a central question in death penalty jurisprudence, for example.
139. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
140. I argue elsewhere that concerns for backlash are often overstated and that the involvement of courts in the same-sex marriage debate has encouraged rather than strangled democratic politics, though early Supreme Court involvement would indeed have stymied what has amounted to a productive decentralized debate. Rodríguez, supra note 6 (manuscript at 50-56).
141. 133 S. Ct. 2652 (2013).
142. Rodríguez, supra note 6 (manuscript at 47).
143. Indeed, the critique that a conventional or consensus morality does not exist has deep roots in constitutional theory. John Hart Ely wrote in 1980 that "there is a growing literature that argues that in fact there is no consensus to be discovered (and to the extent that one may seem to exist, that is likely to reflect only the domination of some groups by others)." JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 63 (1980). Ely also emphasized that widespread social traditions can be both good and bad from the point of view of justice and that the reality is one of competition among traditions and moralities, not consensus.
144. Elsewhere I have elaborated this point with respect to the civil rights movement, highlighting how the debates over disparate impact and affirmative action reflect the elusive nature of national consensus and how the debate over the validity of the former as a policy tool has taken shape in a decentralized fashion arguably productive of a détente, aided in part by the Supreme Court's willingness (for now) to permit decentralized debate. See Rodríguez, supra note 6 (manuscript at 44-48).
145. When courts in particular articulate the traditional values of federalism, they often begin from the premise that robust state sovereignty or identity (or limited federal power) ought to be advanced because of the inherent advantages of a decentralized structure. See, e.g., United States v. Lopez, 514 U.S. 549, 575-77 (2000) (Kennedy, J., concurring); Alden v. Maine, 527 U.S. 706, 748-52 (1999). Protecting states protects liberty by diffusing power; states can serve as laboratories of democracy; and state governments and officials better channel popular will because they are closer to the people and can better track popular preferences. To be sure, each of these defenses of federalism serves a larger principle- protecting individual rights, promoting effective problem-solving, and instantiating the popular will in the work of government-all of which dovetail with what I have defined as the ends of government. But we should not assume that any particular federalist arrangement (or that federalism itself) will always advance these goals. Instead, we should consider how federalism plays out in practice to determine whether and then how best it can serve these ends