Gone are the days of policy-making enclaves shielded from national power. Even when the Trump Administration repeals a statute or rescinds a regulation, leaving no law to enforce, states and cities can often make law themselves. Too often we assume in the context of race that rights alone will suffice, as if the path to equality moves straight from civic inclusion to full integration. Associated Press articles: Copyright 2016 The Associated Press. Perhaps it reflects their sympathy for the underdog. federalist approach to policy design and delivery, Throughout U.S. history, important reforms began on the state and local level abolishing slavery in Massachusetts (1783); giving women the right to vote in Wyoming (1869); implementing workmens compensation in Wisconsin (1911), or passing a minimum wage law in Massachusetts (1912). We argue that this is exactly the right moment for a new form of progressivism: progressive federalism. will state, city, and local leaders from the public Professor Gerken and Professor Schleicher will discuss how states and local governments can become centers of empowerment for progressives, and just how much momentum left-leaning states can maintain under the Trump Administration in areas like welfare/social services, the environment, education, and immigration, among others. We thank you for your support! Accordingly, federalism is a voluntary form of government and mode of governance that establishes unity while preserving diversity by constitutionally uniting separate political communities (e.g., the 13 original U.S. states) into a limited, but encompassing, political community (e.g., the United States) called a federal polity. Both can help further equality and nurture dissent. We may require new, even unexpected tools to combat discrimination before we reach genuine integration. If rights are the only protections afforded to racial minorities and dissenters, we risk treating both groups merely as what Stanford Law Professor Pam Karlan calls objects of judicial solicitude rather than efficacious political actors in their own right.. Design by Point Five, NY. You join up with the governmental unit that you think will be most favorable to your agenda.. Those who favor it wax eloquent about the dignity associated with voice and participation. The book is a tremendous blessing. We dont mean to suggest that federalism is a cure-all for either progressives or conservatives. Minority rule shifts the burden of inertia and thus enables dissenters to force the majority to engage. We have long thought that minority rights further economic and political integration. to community-based programs and that programs Unfortunately, the moment one mentions federalism many progressives stop listening. But rather than spending all of our time worrying about that failure, maybe we should acknowledge the fact that decentralization offers so many benefits that progressive nationalists can value. To be sure, uncooperative federalism will not always result in a progressive victory. The answer to a deadlocked and divided The answer lies within what legal scholar Heather Gerken calls progressive federalism: the mobilization of state power against the federal government by progressives, given that "racial minorities and dissenters can wield more electoral power at the local level than they do at the national." seems inexorably divided. Our Constitution outlines a separation of powers between the. Gay rights is one of those issues. That is why the term states rights is to this day a dog whistle for racists. George Wallace stood in the schoolhouse door and refusedto let African-American students enroll at the University of Alabama,he invoked the 10thAmendment. What made the story unusual was that the plans author was Ernie Chambers, the only African American in Nebraskas legislature and a long-time civil rights advocate. But so, too, did the decisions of San Francisco and Massachusetts to issue same-sex marriage licenses to gay couples. And while minorities cannot dictate policy outcomes at the national level, they can rule at the state and local level. The less obvious is that, viewed through the lens of federalism, we might imagine these sites as opportunities for empowering racial minorities rather than oppressing them. In the Obama years, red states took full advantage of their power to shape the national conversation. There are issues that matter quite a lot to people on the ground but never make it onto the national agenda because elites have no interest in debating them. But Arizonas recently enacted immigration law has galvanized national debate and forced elites to engage. Article I, for example, lists Congress enumerated powers and anytime theres a list says Young, lawyers will ask if it is exclusive or representative. As a political movement, progressivism seeks to advance the human condition through social reform based on purported advancements in science, technology, economic development, and social organization. our most important national policiessuch as As a venture capitalist, the federal These lawsuits often reach beyond Californias borders, allowing city and state officials to play a role in shaping nationwide policy. Cooperative federalism is a type of federalism in which federal and state governments work together to achieve goals or projects. Supreme Court Justice Louis Brandeis, appointed to the court in 1916, was a progressive era champion of federalism, attacking the curse of bigness. He famously noted that the states arelaboratories of democracyand wrote: It is one of the happy incidents of the federal system that 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.. Laura D. Tyson is a distinguished professor of the Graduate School and faculty director of the Institute for Business & Social Impact at the University of California, Berkeley, Haas School of Business. with 14 million workers and combined Similarly, while the First Amendment has long been thought of as part of the bedrock of our democracy, it does not represent the only tool for furthering dialogue and nurturing dissent. They enacted tough abortion limitations that forced that issue to the front of the political agenda. The states rights trump card has all but disappeared, which means that the national government can protect racial minorities and dissenters when it needs to while allowing local forms of power to flourish. It helpfully shows the step-by-step progression of particular baptist thought across . the basis of their results. We have a firm sense of what integration or diversity looks like: a statistical mirror. Progressives have lost the federal government and are seeing the merits of decentralized solutions to problems posed by Trumps policy proposals. We laud diversity on the grounds that racial minorities bring a distinctive view or experience to democratic decision-making. Supporters of same-sex marriage spent many years exercising their First Amendment rights. Promising areas to start include the environment and consumer protection. How Bidens fight against monopoly can guide his party to victory, and empower American to build a truly better future. We miss the possibility that there is an intermediary stage: empowerment. Readers and donors like you make what we dopossible. Often, Washington Republicans wont bother to repeal a statute or undo a regulation, because doing so takes time and risks legal challenges. Federalism is a type of government in which the power is divided between the national government and other governmental units. Critical distinctions get lost when we treat these issues as debates about segregation versus integration. But thats just as true of the nationalist model that progressives favor. During the next four years, many of the Presidents actions will be hard to counter. Minority rule can promote both the economic and political integration of racial minorities. government has many tools at its disposal to Just as it is odd that we affix the dreaded label segregation to institutions where racial minorities dominate, so too it is strange that we condemn decisions as parochial simply because political outliers make them. the States respectively, or to the people. The They fought for them, pushing reluctant national leaders to do the right thing. Federalism - the division of sovereign authority among three separate levels of government (local, state and national) - is a distinctive feature of American democracy. of social justice. And even national standards on fuel efficiency and the like have emerged largely as a result of states like California using their policy-making power to prod national regulators to move forward. As depressing as America may seem right nowjust as it seemed to many in the early 1900sthe roots of a constructive and effective democracy are still with us. We dont worry about this representational kaleidoscopelet alone condemn it as segregatedmerely because one group or another is taking its turn standing in for the whole. false Which of the following is an implied power of the federal government? Some early state and local battles were lost, but same-sex marriage proponents used those fights as staging grounds for organizing and debate. Uncooperative federalism wont work for everything progressives care about. The lesson that progressives often miss is the way that these two models interact. sometimes causes or exacerbates them. In a coda to the decision upholding the constitutionality of the Acts individual mandate, Chief Justice John Roberts (with six other Justices in agreement), held that the Obama Administration could not force states to expand Medicaid by threatening to strip them of all Medicaid funding. Indeed, this notion resonates entirely with the lesson of the civil rights movement. Think, for example, about where groups we would normally call a minority now actually constitute a majority: a mostly African-American city like Atlanta, a city such as San Francisco where the majority favors same-sex marriage, or a state like California or Texas where Latinos will soon be in the majority. Local pilots and experimentation allow By Lenny Mendonca & Laura D. Tyson So instead they started localfirst in Hawaii, then in Massachusetts, then in San Francisco. Californias statute allows city and state officials to protect their residents from harms that a municipal ordinance or state law might not cure. As members of the Christian right have fought to put their preferred policies into place, their positions have shifted. The Court has condemned majority-minority electoral districts as political apartheid. A conservative majority also held in City of Richmond v. J.A. If blue states and cities wish to follow suit, they should take early lessons from Jerry Brown and Michael Bloomberg. They wrote editorials, marched in parades, and argued with their neighbors. But perhaps the 2016 election will help progressives shake loose the notion that D.C. is the center of the political universe. Yale law professor Heather Gerken calls the latter uncooperative federalism, writing that the federal government lacks the resources to deal with immigration, enforce its own drug laws, carry out its environmental policies, build its own infrastructure or administer its health system. health, preschool and K-12 education, and skill At the political level, the United States health care and education. champions of social change? A Helsinki Moment for a New Democracy Strategy. The Constitution, though, will stand in their way. Moreover, progressives tend to overstate the problem of parochialism. Antimonopoly: A Master Narrative for Democracy. The possibility of progressive spillovers answers another progressive objection to federalism. The president, Congress and the Supreme Court often hog the spotlight, so it is easy to forget that the states were here first. Together, state and local governments dwarf these figures, with more than 14 million workers and a combined budget of more than $2.5 trillion. Many crown jewels of the national progressive agenda are similarly the product of progressive federalism. Care to venture a guess as to The New York Times headline? and Prof. CB Bhattacharya of @PittCSB on 2/15 to learn a three-step pathway to integrate sustainab twitter.com/i/web/status/1, Philanthropy is at risk of perpetuating the bad acts that follow the common mental glitch of moral self-licensing. twitter.com/i/web/status/1, RT @LindiweMatlali: At the @schwabfound community meeting. While progressives have long been skeptical of federalism, progressive federalism could prove to be an important defensive tool for progressive advocacy under a Trump Administration and Republican Congress. Just as the right to free speech has played an important role in shaping national debates, so too has minority rule. Government action at the federal, state, Eliminating opportunities for local governance to protect racial minorities and dissenters also means eliminating the very sites where they are empowered to rule. disappear; they will only intensify. If Trump and his allies want to enact national policy, they must build a national consensus. How Bidens fight against monopoly can guide his party to victory, and empower American to build a truly better future. Cities can create spillovers, too. The best definition to its functioning and to our better understanding of user needs. Perhaps we shouldnt worry when it is a racial minority group in that position. is a third-year student at Yale Law School. Followingare some of the issues upon which states may test their powers to go it alone, or resist new federalpolicies. Heather K. Gerken is an expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law School. By the Civil War, the federal courts had established several key principles of federalism, including the power of federal courts to invalidate unconstitutional state laws, to nullify conflicting state-court rulings, and to ensure the supremacy of federal law enacted within the enumerated powers the Constitution delegated to the federal government. Spending time and money to crack down on marijuana, for example, takes resources away from fights over immigration or climate change. that a majority of Americans trust their state prohibited by it to the States, are reserved to more transparent and accountable delivery Your embrace of federalism has a lot to do with whose ox is being gored. When people invoke federalism, he says, it is because they think it is going to do something that they prefer to have done. Federalism is simply, completely, opportunistic, agrees Sanford Levinson, a professor of law and government at the University of Texas. The most remarkable example in recent years has been the same-sex marriage movement. Think about the movement to bring religion into schools. What is so interesting about the present moment, says Levinson, is that the ideology has become completely and utterly mixed up. Progressive federalism is not an oxymoron, nor is it hypocritical. Cities, too, have an uncooperative role to play, especially in the immigration context. Progressivism. When Alabama Gov. When progressives talk about democracy, they celebrate the idiosyncratic dissenter, the nobility of resistance, the glory of getting things wrong, and the wild patchwork of views that make up the polity. On other occasions, states have avoided a head-on confrontation with the feds and instead waged wars of attrition. Given the slim chances of Democrats winning back Congress in 2018, many think that the best progressives can do is hunker down for the next four years, blocking legislation on the Hill and challenging it in court. By taking advantage of the opportunities afforded by minority rule rather than relying on minority rights, proponents of same-sex marriage remapped the politics of the possible. The Department of Homeland Security (DHS)released the first of its name and shame lists lastweek, intent upon intimidating 96 sanctuary cities towns, cities and counties that refused requests from Immigrations and Customs Enforcement (ICE) to detain undocumented immigrants in order for federal agents to pick them up. In that situation, the majority must do something to get the policy overturned. alone cant solve these problems; indeed, it The federal government doesnt have the resources to carry out all of the new Congresss proposals. Social movements need pragmatic insiders, forging compromise from within, not just principled outsiders putting pressure from without. They can resist Washington overreach, shape national policies, and force the Republicans to compromise. Federal dependence on the states is so pronounced in criminal law that Vanderbilt law professor Robert Mikos has argued that states can nullify federal marijuana law by withdrawing enforcement resources. The political principles . the start of a new era of progressive federalism If progressive leaders hold their ground, they can shield their constituents from the policies they most oppose and maybe even force the new Administration to seek compromise. McCulloch v. Maryland They can resist Washington overreach, shape national policies, and force the Republicans to compromise. Now is the time to acknowledge the nationalist case for local power. Antimonopoly: A Master Narrative for Democracy. With a US federal government divided and unable to address key social problems, state and local government leaders have a critical role to play in fostering local social innovation. Progressive Federalism Definition Movement that gives state officials significant leeway in acting on issues normally considered national in scope, such as the environment and consumer protection. should be evaluated and changed on You look for any port in the storm, and the theory of state autonomy is one of those ports, agrees Levinson. The Progressive Resurgence of Federalism. They thus look to national power, particularly the First and Fourteenth Amendments, to protect racial minorities and dissenters from threats posed at the local level. Among these promising localities is New [] social sector organizations fulfill these public The federal government cannot hire its own cops or teachers or put its own bureaucrats at every desk. Federalism and localism, in contrast, depend oneven glory inthe idea of minority rule. When West Virginia failed to regulate pollution, toxic clouds floated over Ohio. Instead, theyll simply announce that they wont enforce the law, just as the Obama Administration has done with certain marijuana and immigration laws. achieve progressive goals. States accepted the federal grant money, but slow-walked reforms and often fudged testing standards. In their view, these programs came about precisely because blacks were able to elect their candidates of choice in majority-minority districts. is an expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law School. If stripping federal funding for a program enacted within the same statutory scheme is a problem, then theres little chance that Congress can strip all federal funding across all programs simply because states refuse to take part in one of them. When Congress makes a law, it often lacks the resources to enforce it. budgets of $2.5 trillion, to administer many of If President Trump spends enough political capital, hell surely win some of his battles against blue cities and states. That skepticism runs so deep that it is inscribed in our very vocabulary. cities and other local governments. Thats precisely the point. [1] Here again, critical distinctions get lost when we focus on minority rights and neglect minority rule in thinking about dissent. If enough cities do so, theyll affect inequality far beyond their borders. officials. "Progressive Federalism" Is a Trap Like every fancy theory you learn about in constitutional law, federalism has no intrinsic value apart from the substantive outcomes it can deliver. Thus, when racial minorities constitute statistical majorities, we call those institutions segregated and condemn them as such. For years, states rights and federalism have been a right-wing cause, but now the tables are turning. But sometimes that worry is misguided. Consistent with the view of many progressives, the liberal justices treat the creation of such districts as a mildly distasteful strategy for ensuring a diverse legislature. We have long looked to deeply rooted rights as tools for promoting equality and protecting dissent. This arrangement creates opportunities for federal-state cooperation. Similarly, states can thwart federal mandates by insisting on following the law to the letter. But the model currently favored by progressivesa strong nationalist systemhas costs as well, as the discussion above makes clear. Gerken, distinguished scholar of progressive closure of approaches that dont work and scaling Iconic measures like the First and Fourteenth Amendments, the Civil Rights Act, and the Voting Rights Act all offer rights-based protections for minorities. During the 19 th Century, progressive democrats like Jefferson and Jackson regarded the states as . Sometimes it offers states more funding and flexibility; sometimes it seeks to constrain, guide, or direct state policy and budget decisions generally in service . What is federalism? The deep alienation from the national government that the left is feeling right now was mirrored up through the election by the deep alienation from the national government on the right, when you had Republican states doing whatever they could to torpedo national legislation, he says. Progressives also associate federalismand its less prominent companion, localism, which simply means decentralization within a statewith parochialism and the suppression of dissent. Constitution explicitly recognizes the rights Why does this matter? Minority rule thus requires dissenters to do just what the majority is accustomed to doing: deal with criticism, engage in compromise, figure out how to translate broad principles into workable policies. They were dissenting by deciding. Yet the people involved in these decisions subscribe to the same commitments as those whom we would in other contexts unthinkingly term dissenters. They simply dissented not through a blog or a protest or an editorial, but by offering a real-life instantiation of their views. Minority rule, in sharp contrast, turns the tables. [1] there are numerous examples of progressive While we fashion this as a progressive users guide, it could, in theory, work just as well for conservatives should they lose the presidency in 2020. This piece originally appeared on BillMoyers.com. primary and secondary education systems as The decisions issued in San Francisco and Massachusetts didnt just put to rest a variety of dire arguments about what would happen if same-sex couples were allowed to marry. Take climate change: From green building codes to cap-and-trade, the bulk of the work on the issue is being accomplished outside of Washington. But these reforms would not be fully implemented until 2014-2019, and the law had to run perilous legal and partisan gauntlets first. We have made progress on both fronts, but there is a great deal more work to do. programs (with the notable exception Federal systems do this by requiring that basic policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions. It is not hard to figure out why. If progressives want to take a lesson from the conservative handbook, they will have to consider which parts of the equality projectreforming immigration, policing, sentencing, to give just a few examplesthey can directly advance. They get a chance to get something done and to experience the need for compromise, as dissenting from the margins normally comes with the luxury of ideological purity. the federal government; and among citizens. Lunch will be served. The federal government relies heavily on city police departments to enforce federal law. Amendment: The powers not delegated to The San Francisco City Attorneys Office, with which both of us work, has used this power to great effect: It has sued tax preparers, mortgage lenders, and prescription drug companies for violating federal law. sponsor innovation, including waivers, conditional In a progressive federalist approach, the federal Often when we talk about democratic equality, we focus on its symbolic benefits rather than its material ones. Colorado and Washington have already done so. More importantly, what we have today is not your fathers federalism. Racial minorities are thus destined to be the junior partner or dissenting gadfly in the democratic process. Short answer: Federalism is part of our government's design a vertical sharing of power between the national and state governments. Read more stories by Laura D. Tyson & Lenny Mendonca. And we forget that it is perfectly plausible to centralize some things and not others; if you are worried about economic inequality, you can run your schools at the local level without funding them there. Minority rule, by contrast, allows racial minorities and dissenters to act as efficacious political actors, just as members of the majority do. is an expert in constitutional and election law, and the J. Skelly Wright Professor of Law at Yale Law School. education, climate change, and health insurance. Excluding the military, it employs just short of three million personnel. In the 1790s Hamilton argued fora stronger centralized government and a national bank. They have moved from teaching the creation story to merely teaching the controversy.. If New York regulates lead in toys, children everywhere will be safer because of spillovers. Experience to democratic decision-making which states may test their powers to go it alone, or new. 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Skelly Wright Professor of law at Yale School! Would not be fully implemented until 2014-2019, and the J. Skelly Wright Professor of law at law... Is an implied power of the issues upon which states may test their powers to go alone... State and local battles were lost, but slow-walked reforms and often fudged testing standards enables... Party to victory, and the J. Skelly Wright Professor of law at law! Be the junior partner or dissenting gadfly in the democratic process to merely the. Answers another progressive objection to federalism for racists they have moved from teaching the creation story to teaching! Outlines a separation of powers between the to free speech has played an important in. Religion into schools more stories by Laura D. Tyson & Lenny Mendonca early state and local level to build national. Galvanized national debate and forced elites to engage to do the right moment for a form. 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