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State Attorneys General Remain Unsteady Allies for Federalism

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In response to: Commandeering Federalism: The Rise of the Activist State Attorneys General

New York Attorney General Eric Schneiderman (C) speaks as Massachusetts Attorney General Maura Healey (2nd from R) looks on during a press conference at the office of the New York Attorney General, July 19, 2016 in New York City. They announced lawsuits against Volkswagen AG and its affiliates Audi AG and Porsche AG. (Photo by Drew Angerer/Getty Images)

My thanks to Hans Bader, Michael Toth, and Jonathan F. Mitchell for their thoughtful responses to my essay concerning state attorneys general (AGs) and contemporary American federalism. Each raises good points about the AGs’ various roles in the era of executive federalism that has rapidly expanded during the Obama years. As all three authors note, AGs can and have pushed back on federal power in numerous ways that can indeed provide a check on administrative discretion and regulatory expansion. Ultimately, however, I would emphasize again that AGs are at best unsteady allies of federalism. First, I have a point of agreement…

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They’re Not the Main Culprit

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State attorneys general aren’t ruining federalism. It was already ruined, as Michael Greve’s 2012 classic The Upside Down Constitution chronicles. It is tempting to blame them, given how badly many state attorneys general behave. Some use their office to enrich themselves or their lawyer pals, or to pursue vendettas against adversaries. The attorney general of Pennsylvania,…

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State Attorneys General Didn’t Start the Fire

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The American form of government, in the classic formulation of Justice Salmon Chase, contemplates “an indestructible Union composed of indestructible States.”[1] The Constitution, apart from assigning specific functions to the federal government, and prohibiting the states from exercising certain powers, largely leaves the determination of public policy to the 50 states. As numerous jurists, statesmen,…

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Federalism and State Attorneys General

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There are many challenges in designing a federalist system of government. Perhaps the most daunting is how to create incentives for government officials to preserve a regime of state-by-state decisionmaking—especially when constituent pressures, partisan allegiance, or ideological beliefs tug in other directions. The U.S. Constitution tries to preserve state prerogatives by enumerating the powers of the…

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Federalism, Upside-Down and Executive

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The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work for a living. So some time ago, the Mercatus Center nudged me to write up a more digestible version of the federalism argument—the political economy piece, sans the ConLaw and FedCourts jazz—for wider distribution. The product, a sixty-off page essay on “Federalism and the Constitution: Competition versus Cartel,” is now available from Mercatus. It’s a quick, convenient introduction to the subject. The essay contains a few new riffs. Among them: our upside-down cartel federalism has become an executive federalism: increasingly, federal-state relations are shaped in one-off…

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Nationalize It

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In this Liberty Law Talk with James L. Buckley—Judge, Senator, Saint—he proposed to terminate any and all federal transfer programs. That bold program is conceptually and directionally right. Can it be done, though? Answer, maybe—provided that… The raw numbers are prohibitive, and horrifying. Four states (Mississippi, Louisiana, Tennessee, South Dakota) collect over forty percent of their revenues from the feds. Two-thirds of the states depend on federal transfers for over 30 percent of their budgets. Mind you: these are 2012 data. Federal transfers under the ACA’s Medicaid expansion—a dollar-for-dollar reimbursement for whatever any state chooses to spend—will drive the numbers through the roof.…

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EPA’s Greenhouse Gases Regulation Meets Federalism

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Under the Constitution, states have no right to “interpose”—that is, to block the enforcement of supreme, validly enacted federal law. However, with the arguable exception of the judges in each state, state officials are under no obligation to execute an affirmative federal command issued to them. They cannot be ordered to accept federal funds or to establish an exchange. The ACA illustrates the salutary force of this constitutional precept: grand federal schemes gang aft agley. The next big illustration could and hopefully will be the regulation of greenhouse gases under section 111(d) of the Clean Air Act (CAA), coming very soon in this theater.

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Federalism, Yet Again: Views From the Citadel

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Last Fall, the excellent Jim Fleming (Boston University Law School) organized a fun conference on “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.”

Part of the conference was a panel inviting Sotirios A. Barber (Notre Dame) and yours truly to critique each other’s books on federalism—respectively, The Fallacies of States’ Rights (Harvard UP, 2013) and The Upside-Down Constitution (Harvard UP, 2012). Both of us took the assignment quite seriously.

Let’s just say there’s not a lot of common ground; it’s a rather pointed exchange. To my mind, though, the colloquy illustrates the high utility (as well as the entertainment value) of the bilateral critique format, which I think Jim Fleming invented. Kudos.

What struck me on flipping through the essays for purposes of this post is just how much of a game changer the ACA has been, or become.

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Mired in Dysfunctional Federalism

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It’s no fun being the skunk at the garden party, but amidst the widespread praise of Paul Ryan’s recently announced anti-poverty reforms it appears some criticism is overdue. 

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Common Core Nation

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In this discussion I talk with Professor Sandra Stotsky who has emerged as one of the leading critics of the Common Core State Standards Initiative. Stotsky has testified before numerous state legislatures and has written reports and op-eds documenting its deficiencies. Common Core aims to be a national solution to the problems of performance that have dogged education in America. As such, its scope is comprehensive in its attempt to impose education standards, testing requirements, teacher and student evaluations, among other items, on all 50 states. Currently, 45 states have accepted the standards and are implementing curricula around them. But…

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The Republic of the Common Core

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School House, Clarke County, MI

For those paying attention to the debate over the Common Core education standards (CC), dissent seems to be rising and is moving school board-by-school board, state-by-state, and legislature-by-legislature (link no longer available). This is unsurprising, and, I think, warranted given the opaque process that brought the Common Core standards to your child’s classroom. This can be contrasted with the adoption of state standards like the Massachusetts’s ones—long considered the toughest and most productive—that were adopted in the early 90’s after much public debate and revision, with input from a number of sources. The CC was designed as a nationalized curriculum, literally generated by “experts,” sans public comment and revision, and accepted by the states under the well-worn bargain of cooperative federalism contained in Obama’s Race to the Top education program.

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The Debt Trap, Part (1)

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President Obama didn’t discuss the nation’s massive, swelling debt in his State of the Union address. Mitch Daniels did, and good for him: the flood of red ink really is the Niagara. Our accelerating drift toard the cliff, moreover, entails not only fiscal and economic but also institutional and constitutional consequences of grave import. State and local debts are a comparatively small tributary to the great stream, but they illustrate the point.

State and local debts are composed of about upwards of $4 trillion in unfunded pension obligations; upwards of a half-trillion in other pension benefit obligations (mostly for health benefits), also unfunded; and about $2.9 trillion in municipal (state and local) bonds. These debts will not be paid (at least not in real dollars), because they cannot be paid. The question is how and to whom our federal system is going to administer the haircut—and what changes it is likely to undergo in the process.

Today’s post deals with the background causes and conditions of state debt; tomorrow’s, with federal bailouts; Monday’s, with fiscal federalism’s future. (It’s not the EU. It’s Argentina.)

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