Federalism Akimbo

I adore James Bond movies, but that doesn’t mean I like all the ways in which the franchise has been used. The same goes for delicious bacon. It’s great, but it isn’t right for every situation. Sometimes it’s just plain wrong.

I’m thinking about the misapplication of good things because of what’s happening to federalism in the United States. For a large, diverse nation such as ours, a federal republic in which the states are the sovereign building blocks of the national government is the best way to ensure liberty and “domestic tranquility.” But that doesn’t mean every way that concept is applied is good. Indeed, its misapplication and abuse can undermine the very goals our system was implemented to achieve.

Federalism prevents the consolidation of power in the hands of too few people and creates space for Americans of different beliefs to live in different ways. It’s very much in keeping with our anti-majoritarian system of government. Instead of having all power flow to one central government, we have 50 state-level centers of power that can act as counterweights to Uncle Sam. Divided power is a great protector of freedom. 

The part about the space for differences, though, gets trickier. Progressive hero Justice Louis Brandeis led the way to creating what we now call the concept of “laboratories of democracy.” In a 1932 case, the still-conservative court ruled that Oklahoma didn’t have the right to require licenses to sell ice. The decision was that it was arbitrary interference with the federal constitutional rights of the individuals. Brandeis, dissenting as part of the ascendant progressive minority, argued that states should be given room to experiment with policies that bump up against individual rights: “[A] single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

If Michiganians want a 10-cent deposit on cans and bottles, that doesn’t have to be Indiana’s problem. If Hoosiers want to forbid bars from having happy hour, that’s no skin off of Ohioans’ noses, and so on. The 10th Amendment’s demand of deference to state authority on all matters not addressed by the Constitution allows for plenty of variety and experimentation. And it’s still working today. 

Wyoming’s once-thriving coal industry has been crushed by power companies’ switch to natural gas. That has led the Cowboy State to embrace an initiative from Bill Gates and Warren Buffett to build a new kind of nuclear power plant that uses the radioactive waste from older plants to produce zero-emission electricity. Not many politicians would want to take a chance on a new idea attached to an unpopular industry. But Wyoming can if it wishes.

California, meanwhile, is pursuing a plan to subsidize as much as 45 percent of home purchases for low-income buyers. It would be very expensive and probably drive already brutal housing prices in the state even higher. But as one of Brandeis’ laboratories, California is free to experiment. If there’s a figurative meltdown in California’s housing market or a literal one in Wyoming, voters in those places can evict the officials who conducted the experiments. If they work, other states will emulate their success. If they fail, other states will profit as people and capital flee the consequences. 

This is also true with moral matters. Whether it be pot, gambling, or Sunday liquor sales, the states affect each other by competing for revenue from vice. If your neighboring state is making money by allowing recreational reefer, video poker, or bottomless mimosas at brunch, your own state may well follow suit. A marketplace of ideas means competition. 

But that’s different from when states try to force Americans in other states to live a certain way or to usurp the powers reserved for the federal government. California has long used its gargantuan size to try to set national policy on environmental issues. With an economy almost as large as Germany’s, California can upend energy and emissions standards with automakers and other manufacturers. If your car or washing machine costs more in Kentucky or Kansas, it may be because of what they said in Sacramento. 

Florida is following suit with its preposterous new social media regulations. The legislation is legal clickbait that even its proponents know will get laughed out of court. But if Florida really did have the power to regulate the internet, it would have implications for all Americans. It’s possible that social media companies would just shut off Florida, but the size of the Sunshine State’s market, severity of the penalties, and difficulty of geographical limits online would probably mean Florida would be setting a national standard. 

That’s no real kind of federalism. Instead of keeping power from concentrating in the hands of the few in Washington, it puts power in the hands of even fewer in Tallahassee. The same is true of the states colluding to hack the Electoral College and impose a national popular vote.

We hit a new low on this horizontal federalism with a lawsuit from Texas’ attorney general seeking to overturn Pennsylvania’s 2020 election results. The alleged grounds for the suit were that the Keystone State’s coronavirus voting rules adversely affected Texans because they produced an outcome—a Joe Biden victory—that was the opposite of what Texas voters wanted. I’m sure that Sen. Ted Cruz and many of the folks in Congress and in statehouses around the country who signed on to the effort were pandering with confidence because they knew the Supreme Court would torpedo the case. But even assuming the suit was disingenuous, we should pay attention as politicians define down federalism. 

State power is great when it balances and limits the authority of the national government. But when it becomes a vehicle for harassing people in other states, it defeats the constitutional vision for limited, divided power.