Does the Logic of Collective Action Explain Federalism Doctrine?
Huq, Aziz Z., Stanford Law Review
Recent federalism scholarship has taken a "collective action" turn. Commentators endorse or criticize the Court's doctrinal tools for allocating regulatory authority between the states and the federal government by invoking an economic model of collective action. The ensuing corpus of "collective action arguments" has been invoked by both pro-federal and pro-state scholars to underwrite either judicial acquiescence in broad national authority or robust judicial intervention to protect states' interests. Both strands of argument have also found echoes in recent Supreme Court jurisprudence.
This Article reconsiders the relevance of collective action arguments for federalism doctrine. Without questioning the role of collective action dynamics in descriptive accounts of American federalism, it challenges their normative significance for the purpose of fashioning structural constitutional doctrine. At the Article's core is a simple claim with plural ramifications: there is no unique logic of collective action that can well explain American federalism. Instead, heterogeneous collections of states will, under different circumstances, follow distinct trajectories that end in divergent end states. Collective action dynamics among the several states can hence produce not only optimal but also highly undesirable equilibria depending on how initial parameters are set. Moreover, the various collective action dynamics animating American federalism are too heterogeneous and empirically contingent to point univocally in one direction toward any simple and stable judicial approach. Absent a single model that works as a reliable rule of thumb, the plural logics of collective action do not provide a stable analytic lodestar to guide judicial intervention. Nor do they provide an accurate proxy for the Framers' original understanding of federalism. Accordingly, the Article concludes that judicially enforced federalism cannot be vindicated in terms of collective action arguments. Instead, it suggests that to the extent the case for judicially enforced federalism rests principally on the availability and soundness of collective action explanations, there may be sound reasons for courts to abandon the field.
INTRODUCTION I. COLLECTIVE ACTION FOR AND AGAINST FEDERALISM A. Collective Action and the Case for National Authority 1. Originalism and collective action 2. Collective action and the structural argument for national authority B. Collective Action and the Rights of States 1. Vindicating federalism through politics 2. Collective action and the political safeguards II. THE PLURAL FORMS OF COLLECTIVE ACTION IN PUBLIC LAW" A TYPOLOGY A. Heterogeneous Participants B. Step Goods C. Noncoercive Solutions D. Increasing the Number of Iterations and Participants E. Alternative Payoff Structures III. COLLECTIVE ACTION AND THE CASE FOR NATIONAL POWER REVISITED A. The Weak Collective Action Case for National Power 1. The frequency of interstate cooperation 2. Noncoercive solutions to interstate collective action problems 3. Comparing state and federal collective action B. Collective Action Arguments as Constitutional Arguments IV. RECONSIDERING THE CASE AGAINST FEDERALISM'S POLITICAL SAFEGUARDS A. Questioning the Tragedy of the Federalism Commons B. Federal Legislative Solicitude for State Interests C. Noncoercive Solutions to the States' Collective Action D. Comparative Analysis of States' Collective Action Costs 1. Collective action in Congress 2. Are courts or Congress a better forum for states? CONCLUSION
Numbers matter in American public law. There are many states but only one federal government. When the national government acts, it can overcome the states' collective inability to organize and install their own solutions to pressing policy concerns. …