The Future of Federalism
AEI Newsletter

It is the structure of our constitution that has made America a beacon of freedom in the world and has secured our individual liberties, federal appeals court judge William H. Pryor Jr. said at AEI on September 12. "In our post-September 11 world, where freedom is our hope, we need federalism--which secures freedom--now more than ever," he remarked during his keynote address at a conference on the future of federalism. "Both federalism and the separation of powers must endure as structural limits of government." Several law professors and constitutional scholars of widely differing perspectives joined Judge Pryor to debate the meaning of federalism and its relevance for American law and politics.

Federalism ensures that the federal government focuses on its own constitutional functions. "The Constitution created the federal government to protect national security, conduct foreign affairs, and promote economic competition because the states are not up to those tasks," Judge Pryor said. "Whenever the federal government usurps a power of the states, it necessarily diverts its attention from its national responsibilities."

During the opening panel, AEI's Michael S. Greve explicated two ways to understand "federalism": the states versus the federal government and the states cooperating with or competing against one another. Greve said that federalism serves to "reduce the costs of government and constrain government." Malcolm Feeley of Berkeley Law rejoined that federalism forces individuals to adopt dual identities--as a citizen of a state and as an American--and that this system is unstable because the United States does not function very much in this way. "Very few people, if any, are willing to kill or be killed for their local community," Feeley said.

Ilya Somin of the George Mason School of Law argued the merits of competitive federalism, saying that certain policies can drive individuals to "vote with their feet," migrating to different states based on self-interest. Somin said that mobility is easier now than in the past due to increases in available information and the relatively lower costs of migration. "If states can depend on 'sugar daddy' federal-level welfare, then there is less incentive for the states to compete in ways that will benefit the rich and poor alike," he said. Roderick Hills of the New York University School of Law introduced a different view of competitive federalism. His theory of "agency costs"--voters' difficulty in monitoring their elected officials--is based on competition between the states and the federal government.

The second panel focused on judicial review of federalism. Randy Barnett of the Georgetown University Law Center presented his view of the "three federalisms": enumerated powers federalism in the founding era, fundamental rights federalism following the Civil War, and affirmative state sovereignty federalism following the New Deal. Barnett also identified a "new federalism" that started under the Rehnquist court and is grounded in the Tenth and Eleventh Amendments. Jesse Choper of Berkeley Law argued the merits of congressional action in protecting states rights, arguing that "laws that allegedly infringe on state power need enormous broad support" to pass as legislation from Congress. "This all works to protect states' rights in the national government," he said.

The final panel focused on the importance of federalism for health care and environmental policy. Vanderbilt University Law School professor James Blumstein spoke about the State Children's Health Insurance Program in relation to federalism. AEI's Thomas P. Miller argued the merits of competitive federalism--including the need to "bring market-like forces to bear on politics"--in terms of health care regulation. Miller said that "top-down federal preemption" should be avoided in health care regulation reform and that we should instead opt for less federal legislation. Jonathan Adler of the Case Western Reserve University School of Law said that citizens should "want the federal government to care for the public good," especially in relation to the environment, but that many times the "federal government regulates in many areas where there is no clear analytical basis for federal regulation."

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