As it tends to do when not in political control in Washington, the Left has rediscovered the power of state sovereignty. That doctrine is being used to resist the new administration’s federal immigration policy in a way that’s identical, in formalistic terms, to the Right’s tactics during the early days of the Obama administration—albeit in service of an opposite outcome.
There has been a lot of agitation and, predictably, litigation over the President’s firm intent to whip “sanctuary cities” into line. The general tenor of the online commentary has been “Federalism Lives!” exultation, from Left (Jeffrey Rosen) to Libertarian (my colleague Ilya Somin, whose post links to like-minded writers). Courtesy of the Rehnquist-Roberts Court’s constitutional doctrines on federal funding and “commandeering,” the chorus chimes, the President cannot do what he has proposed to do by executive order—yank federal funds from non-cooperative jurisdictions.
For reasons I’ll explain at somewhat painful length, it’s not at all certain he can. The “let’s hear it for federalism” folks may yet be right—but for somewhat different reasons than they think.
I have spent the last several days reading and re-reading the opinions in NFIB v. Sebelius, hoping to find a unifying “theme” to organize all my thoughts about the case before posting about any of them. This exercise has left me with a deeper appreciation of how blogging differs from other forms of expository writing; a headache; and a vague sense that NFIB v. Sebelius is in part a case about sovereignty (as I had thought when I submitted this amicus brief (link no longer available) to the Eleventh Circuit).
A few weeks ago, I took issue with the PPACA plaintiffs’ contention that the statute impermissibly “coerces” states to participate in a massive expansion of Medicaid. The federal government’s brief on this issue is due today. I’m not going to like the feds’ position, either. Both sides, I believe, proceed from a badly flawed federalism premise.
Everyone recognizes that there is no direct, explicit constitutional guarantee against the “coercion” of state and local authorities by the federal government. However, the constitutional structure is widely understood to require a federal “balance” between Washington and the states. While the feds may encourage states to participate in federal schemes (usually, by offering them money), they may not coerce the states’ participation: that would derange the federal balance. The notion of “federalism as balance” is deeply embedded in the Supreme Court’s decisions, the legal literature, and the public federalism debate. In the contentious Obamacare litigation, it is a small patch of common ground among the parties.
It’s a miserable piece of real estate. Any appeal to federalism’s “balance” is pernicious, constitutionally baseless nonsense. Federalism is about a carefully wrought constitutional structure, not a global balance; and one cannot get that structure right until and unless the balance dogma is first put to rest. That’s the agenda for this post. (A more fully developed, footnoted version of the argument appears in The Upside-Down Constitution, which has a longer version of everything.) Monday’s post will apply the argument to the Obamacare litigation.