Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond

By Moncrieff, Abigail R. | American Journal of Law & Medicine, April 1, 2012 | Go to article overview

Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond


Moncrieff, Abigail R., American Journal of Law & Medicine


I. INTRODUCTION

The lawsuits challenging Obamacare's1 individual mandate2 have exposed a riftin federalism theory. On one side of the divide is a view that the national government ought to intervene-and ought to be constitutionally permitted to intervene-whenever the states are "separately incompetent"3 to regulate a particular subject.4 According to this view, the primary purpose of the Constitution's enumeration of national powers is to authorize Congress to fix collective action problems among the states.5 Borrowing from Robert Cooter and Neil Siegel's article of the same name, I refer to this view as "collective action federalism."6 On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty.7 According to this view, there is inherent value to state power that ought to be preserved against national encroachments.8 I refer to this view as "libertarian federalism." In the Obamacare litigation, believers in collective action federalism generally support the individual mandate while believers in libertarian federalism generally oppose it.9

This Article presents a standard cost-benefit theory to bridge the gap-to reconcile the two competing theories of federalism. The cost-benefit theory is premised on two basic views. First, federalism exists both to promote regulatory efficiency and to protect individual liberty. That is, collective action federalism and libertarian federalism both rest on sound foundations. Second, regulatory efficiency always counsels in favor of national authority while individual liberty always counsels in favor of state authority. Either collective action federalism or libertarian federalism, if followed to its natural conclusion, would do away with federalism altogether. Assuming, then, that federalism is worth preserving and that both views rest on good foundations, the Supreme Court ought not to adopt one view to the exclusion of the other.

Fortunately, it is quite possible to follow both views simultaneously by optimizing the balance between the two. Under cost-benefit federalism, the inquiry ought to weigh the efficiency losses of state action against the liberty losses of national action and ought to choose the approach that maximizes the value-the benefits minus the costs-in the distribution of governmental authority. That is, if the libertarian costs of federalization outweigh its efficiency benefits, then Congress ought to leave regulation to the states. But if the efficiency benefits outweigh the libertarian costs, then Congress ought to regulate. Unlike the collective action and libertarian theories, the cost-benefit approach allows for some generalizable distinctions in the kinds of regimes that should fall to Congress and the kinds that should fall to the states. Cost-benefit federalism does not argue monotonically for national or state control. Indeed, the cost-benefit theory suggests a federalism line that roughly tracks the current doctrinal distinction: the economic/noneconomic distinction in the Supreme Court's Commerce Clause cases.10

That said, the simple account of the cost-benefit theory is too simple, for two reasons. First, not all regulation is monopolistically state or national; many regulatory regimes involve both levels of government.11 But while national action can preserve state advantages, state action has a much harder time capturing national advantages.12 Congress can (and frequently does) write national legislation that preserves states' ability to protect individual liberty (through either "cooperative federalism" programs or narrowly preemptive national laws), but states rarely surmount their collective action problems to engage in more-efficient coordinated efforts.13 It might be quite rational, therefore, for courts and commentators to take a less skeptical view of national claims to action than of state claims to action.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Cost-Benefit Federalism: Reconciling Collective Action Federalism and Libertarian Federalism in the Obamacare Litigation and Beyond
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.