I am not a member of the Federalist Society, but I am a member of the federalism society. Much of my work has been devoted to making the progressive case for federalism, even the nationalist case for federalism. (1) That work addresses the concern that all progressives have about federalism: whether it harms racial minorities and dissenters, the two groups that progressives worry most about in a democracy. Progressives will not be convinced of federalism's merits without an answer to that question. But federalism's proponents typically offer little more than an apologetic sidebar on the race question and they do not have all that much more to say on the dissent side. My work has thus been devoted to showing that federalism and its homely cousin, localism, play a crucial role in promoting the political and economic integration of racial minorities and in generating dissent and democratic debate.
I assume, however, my role is to provoke. By way of provocation, I want to offer a friendly suggestion to those who believe, as I do, in federalism and the important role that states play in our democracy. My suggestion is directly related to the subject of our panel: the Supreme Court's recent Affordable Care Act decision (2) and the brouhahas surrounding it.
To put the point sharply, the Federalist Society may be the tribe of lawyers that cares the most about state power, but its members are thinking about it in the wrong way. At the very least, they are missing something crucial. That is because most of the Society's members are ignoring what may be the most important source of state power in the twenty-first century, one that will only become more salient as time goes on.
Most lawyers who care about state power are deeply interested in the battle between the sovereigntists and the process federalists. Although that battle is far from over, it is coming perilously close to degenerating into the intellectual equivalent of the "great taste, less filling" debate. Those on both sides of the divide have spent a great deal of time worrying about whether it is state sovereignty or state autonomy that matters, whether we need de jure judicial protections for state power or whether de facto political protections are enough. Those arguments then get wound around whatever federalism case the Supreme Court has most recently decided, which is precisely what has occurred with National Federation of Independent Business v. Sebelius. But this preoccupation with the sovereignty-process debate has led those interested in federalism to miss a simple fact: Much of the state-federal power game has shifted to precisely where the Affordable Care Act takes us today, the realm of cooperative federalism.
Cooperative federalism is where the action is. It is where the future is. And if you care about state power, it might be useful to devote some of the massive intellectual energy now spent on the well-worn sovereignty-process debate to thinking about how to ensure that states retain an important role in state-federal governance going forward.
The part of National Federation of Independent Business that matters in the long term is not the part that has dominated the debate thus far: the Commerce Clause ruling. (3) What will matter in the long term is the Spending Clause ruling. (4) That is the part of the opinion that goes to the heart of how the States and the federal government will interact going forward. And although nationalists call these interactions "cooperative federalism," I suggest that those who care about state power think about these institutional arrangements as opportunities for "uncooperative federalism". (5)
Those interested in state power may bristle at the notion that cooperative federalism--or even uncooperative federalism--offers meaningful opportunities for states to exercise power. That's because the power states wield in these regimes is the power of the servant, not the sovereign. …