Article I, Section 8, Clause 3: The Commerce Clause

Panel Recap: Localism and Democracy

At the inception of the American Constitution Society, just eight years ago, this panel might well have been viewed as an anomaly. Federalism was the watchword of conservatives struggling to constrain the power of the national government. How times have changed. As Ernie Young noted in his pre-conference blog post, "During the Bush years, progressives trained since the 1960's to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California's right to go its own way on environmental policy and Massachusetts' prerogatives to allow gay marriage at home and protest human rights violations abroad." The result has been a flourishing progressive federalism movement—or more accurately, as several panelists noted, a federalism without political valence. The four panelists last Saturday spoke to divergent features of today's federalism. What united their presentations was a sense of the dynamism and possibility of the new federalist movement.

Video courtesy of Yale Law School.


First to present were Ilya Somin and Ernie Young, who brought opposite perspectives to the question of how diminishing loyalties to particular states have altered the course of federalism. Somin argued that lower barriers to inter-state mobility promote federalism by facilitating "voting with your feet," even as the rise of federal funding reduces states' incentives to attract tax revenues. Young argued, to the contrary, that a resurgence of state loyalties is needed to foster rich cultures of federalist innovation within the states.

 Richard Schragger and Ethan Leib, next to speak, turned to the details of implementing progressive federalism. Schragger made an impassioned pitch for "federalism all the way down" in the tradition of Justice Brandeis, looking to cities rather than states as the real cradles of policy innovation. He argued for a related kind of localism as well, suggesting that "progressives should reassert the relationship between political and economic decentralization." Leib, citing his own experience with a team that seeks to revise the California Constitution, discussed how progressives might focus on state constitutional conventions as immediate opportunities to facilitate progressive change.

Heather Gerken, in her commentary on the panel, sought to connect its themes with those of the Individual Rights panel that preceded it. She argued that the traditional division between rights and structure as constitutional paradigms has limited progressives in their efforts to promote minority rights. Drawing examples from the struggle for racial justice and from her own work on dissenting by deciding, she argued that progressives should embrace federalism as a new structural language for the values of participation and representation.

Along with the panelists and questioners, moderator Judith Resnik suggested several avenues for further thought. First, what is the relevance of trans-local organizations of government actors (what Resnik, along with Josh Civin and Joe Frueh, have called "TOGAs") in progressive federalism? Second, how limiting are the challenges of immobility in American society? Third, what should progressives do about the currently dysfunctional governance of major states?

I'll close by suggesting a few others. One important question is the extent to which federalism will remain without political valence. Are we likely to see a kind of bifurcated federalism, with liberals and conservatives favoring different versions? Another question: Will governance at the local level reproduce the power dynamics of governance at the national level, or—as Gerken suggests—does it afford unique representational opportunities? Finally, given the present Democratic control of Congress and the presidency, will liberals need to endure a future period in the political wilderness in order to heed Justice Brandeis's call—channeled by Schragger—to "end this business of centralization" and "go home, back to the states" to "do their work"?

Locating Union Rights

Crosspost from Balkinization

The labor movement has long pined for the constitution, but the story of constitutional protection for workers’ collective rights is one of disappointment. The peak moments of constitutional intervention into union activity have been moments of hostility: most famously, early 20th Century courts invalidated scores of statutes that aimed to insulate workers’ collective action from employer retributions. When workers sought affirmative constitutional protection for their collective activities, the reception has been lukewarm at best.

With this history in mind, I join Richard Ford in the view that, when it comes to workers’ ability to engage in collective action to improve their lives, the Constitution is not the most likely source of progress for the 21st century. I also join Ford in thinking that progress for workers in the 21st Century, just as in the 20th, will depend on political and legislative action, and that what we need the constitution to do, in the main, is not to interfere. 

Today, substantive due process is no longer an impediment to workers’ collective activity, and the Court long ago found room in the Commerce Clause for federal regulation protecting unions. One major contemporary impediment to advancing workers’ collective rights, however, has constitutional roots: the preemption of state and local law. (There may well be other constitutional hurdles in the months and years ahead. The possibility that employer speech rights will be implicated by amendments to the Employee Free Choice Act, and that non-delegation arguments will be made against the proposed interest arbitration provisions of that bill, are two of the more obvious possibilities.) 

Preemption in the labor context is robust: any state or local law that “arguably” touches on a matter governed by the National Labor Relations Act is invalid. Attempting to find room within the very narrow exceptions to this doctrine, states, counties and cities have made modest attempts to modernize the rules of union organizing. Nearly all of these efforts have been invalidated on preemption grounds.

More important than the state and local laws that have been struck down, however, are those never attempted.  Given the mismatch between the contemporary organization of the economy and the contours of our federal labor law, the possibility for – and the call for – experimentation is obvious. How about allowing “minority” unions which bargain solely for their members?  How about mandating labor-management committees in all workplaces of a certain size? How about, in the name of giving workers not only a “free” but an informed choice on the union question, allowing unions and management to negotiate collective bargaining agreements prior to the organizing campaign? What about banning the permanent replacement of striking workers? Real experimentation of this sort is flatly prohibited by preemption rules, so local governments don’t even try. But this kind of experimentation could yield significant results and teach us a great deal about the implications of different courses for reform. 

Opening up the possibility for state and local experimentation in labor law makes sense for a set of reasons independent of the particular impact that reforms would have on workers’ collective rights – including the possibility that experimentation would point us toward a more tailored and context-sensitive legal regime that better advances the interests of both employers and employees. I do not have room to discuss these reasons here. With respect to the collective rights of workers – the relevant topic for this forum – several observations are important.  Most obviously, with less federal preemption, states and localities would be free to move in any number of directions. Some would legislate to expand protections for workers’ collective activity, others would attempt to restrict that activity. Common law claims would also be back in play. Here, unionism could be attacked (on the grounds, for example, that it constituted tortious interference with contract) or defended (employees discharged for attempting to organize could sue for wrongful discharge on the ground that the terminations were in contravention of public policy).

As a practical matter, the severe limitations of the federal regime (probably even a post-Employee Free Choice Act regime) mean that it would be much easier for states to make things better than worse. In many states, rates of unionization are so low that even an outright ban would not have a terribly large effect. 

Nonetheless, defining and then designing an optimal preemption regime will require careful attention. If we intend the regime to facilitate experimentation while also ensuring that some basic protections remain in place for all employees, federal law will need both to allow for state innovation and to establish a floor – or baseline – of collective rights. The Constitution could fulfill this role: for example, the associational rights contained in the First Amendment might be read as precluding states and localities from simply banning unionization and related forms of collective action. But a new express preemption provision in the federal statute itself is the more likely, and better, bet.

Benjamin Sachs is Assistant Professor of Law at Harvard Law School. He will be appearing on Saturday's "Social Rights" panel with Risa Goluboff (University of Virginia School of Law, "Social Rights") and Jacob Hacker (Yale Law School, "The Democratic Case for Tackling Economic Inequality").

The Promise and Peril of Federalism in the 21st Century

Crosspost from Balkinization

American federalism faces both great promise and serious dangers over the next few years. One of the most important advantages of federalism is the ability to “vote with your feet” – to leave a state with oppressive or ineffective policies and move to a better one. Modern technology has greatly reduced the moving costs that previously made interstate migration difficult.  Information about different jurisdictions is easier to get than ever before. Increasing mobility and declining information costs give state and local governments stronger incentives to adopt policies that will be attractive to migrants. Revenue-hungry state governments know that valuable taxpayers will depart if they raise taxes too high or provide poor public services.

Some claim that federalism has lost its value because most Americans no longer feel any strong attachment to state governments. Yet this change may actually make federalism more effective. People who do not feel an attachment to their states are more willing to vote with their feet. This strengthens the incentive of state and local governments to adopt policies appealing enough to keep migrants from leaving. In an increasingly complex and  diverse society, federalism is also potentially more valuable than ever in its traditional role of providing divergent policies for people with differing preferences.

Unfortunately, American federalism is imperiled by the ongoing growth of federal power, especially the increasing dependence of state governments on federal funds. Our system has been successful in part because state governments have historically been forced to raise most of their revenue themselves. State governments that raise their own funds have strong incentives to adopt policies that promote economic growth and attract potential migrants. A state that falls behind its rivals is likely to lose its tax base. But states that can rely on federal funding to meet their fiscal needs face much less competitive pressure and are therefore less likely to adopt good policies. Moreover, federal grants to state governments enable Washington to reduce policy diversity between states, since Congress routinely attaches conditions to its grants that mandate uniformity.

The explosion of federal spending since the financial crisis of 2008 has made states more dependent on federal funding than ever before. In 2009, federal grants-in-aid constitute some 25% of total state revenue, up from less than 20% in 2007. For the first time, federal grant money has become the single largest source of state revenue. The Obama Administration expects federal funding for states to remain at this abnormally high level for years to come. Even when the recession ends, it will be politically difficult to cut federal grants back to previous levels. If Congress passes a major health care bill, federal grants to states will increase still further.

Federalism has also been weakened by the expansion of Congressional regulatory authority. The federal government has come to regulate almost every aspect of American society. This trend accelerated under the Bush Administration, which pushed through legislation expanding federal control of education and health care, and supported federal preemption of a variety of state laws, including ones permitting assisted suicide and the use of medical marijuana. The more policy areas come under federal control, the less the scope for interjurisdictional competition at the state and local level.

Unfortunately, state governments are often complicit in the overexpansion of federal power. States routinely lobby for increased federal funding. For their part, most voters have little understanding of federalism issues. As a result of such public ignorance, overextension of federal authority is rarely punished at the polls.

There is no easy way to limit or roll back the growth of federal power. Increasing public understanding of the problem is a necessary but difficult first step. The courts can also help by enforcing constitutional limits on federal authority. Nonlawyers rightly react with disbelief when they learn that Supreme Court has interpreted Congress’ power to regulate “Commerce . . . among the several States” expansively enough to uphold a ban on the possession of medical marijuana that was never sold in any market or left the state where it was grown. The Court has similarly erred in interpreting Congress’ power to spend for “the General Welfare” so broadly as to legitimize expenditures for local porkbarrel projects such as the “Bridge to Nowhere” that blatantly benefit parochial local interest groups at the expense of nation as a whole. Courts obviously cannot rein in federal power all by themselves. But they can provide a useful corrective.

The 21st century could be an extraordinarily successful time for American federalism -  but only if we restrain the growth of federal power.


Ilya Somin is Associate Professor of Law at George Mason University School of Law. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ernest Young (Duke University School of Law, "Preserving Democracy's Laboratories"), and Ethan Leib (University of California Hastings College of the Law, "Constitutional Conventions: Getting 20/20 Vision About Them by 2020").

Preserving Democracy’s Laboratories

Crosspost from Balkinization

As Judith Resnik’s contribution to the “Constitution in 2020” volume makes clear, American federalism has neither a progressive nor a conservative political valence. In Wisconsin’s beautiful statehouse in Madison, one can almost sense the ghost of Robert LaFollette and other early Progressives, who initiated reforms in the states before taking them national. Nor should we forget Henry Adams’s observation that, prior to the Civil War, “there was no necessary connection” between “the slave power and states’ rights. . . . Slavery in fact required centralization in order to maintain and protect itself.” During the Bush years, progressives trained since the 1960’s to disparage state autonomy as indelibly tainted by racism rediscovered the importance of state policy diversity. They defended California’s right to go its own way on environmental policy and Massachusetts’ prerogatives to allow gay marriage at home and protest human rights violations abroad.  After 2008, progressives will be tempted to shift back to reliance on national power.  But what has once turned can turn again, and 2016 might well bring back the “bad old days” in Washington, D.C.

If both conservatives and progressives ought to value state autonomy, how can we preserve it in an age of runaway integration? Many have focused on either reviving constitutional protections for state autonomy—e.g., by interpreting the Commerce Clause in a more limited fashion—or construing federal statutes to minimize preemption of state law. Both are worthwhile endeavors. But the ultimate safeguards of federalism are political. Judicial protections are unlikely to avail much if the States lose the wellsprings of popular support that give weight to their representation in the national political process.

These days, those wellsprings often seem at risk of drying up. It is difficult to imagine many modern Americans choosing, as Robert E. Lee did in 1860, allegiance to their state over allegiance to their country. Today’s citizens are considerably more likely than their Nineteenth Century counterparts to live in multiple states over the course of their lives, and our media and political culture focus relentlessly on national politics. Local communities, moreover, seem generic and unlikely to inspire strong personal attachments. When David Souter left the Supreme Court to return to his beloved New Hampshire, he was considered highly eccentric for his steadfast sense of belonging to a particular place. And why not, when there is a Starbuck’s on ever corner regardless of whether one is in Greenville, South Carolina or Concord, New Hampshire?

States function as effective laboratories when innovative individuals are sufficiently committed to state political communities to press their ideas at that level. And the resulting innovations will be best defended against national pressures for uniformity when voters and politicians feel they have a stake in the state’s autonomy. A decline in state identity and distinctiveness thus threatens states’ ability to be laboratories and havens for minority viewpoints. The question is whether anything can be done to restore a sense of identity and public commitment in the states.

We may learn something here from an inverse debate in contemporary Europe. National identities in Europe have frequently been a function of ethnic and religious ties. As the European Union develops institutions of governance at the supranational level, however, Europeans have wondered whether democratic accountability at that level requires a pan-European politics based on a shared pan-European identity. Traditional national identities based on shared ethnic and religious ties, however, cannot be replicated at the European level. A prominent proposal to solve this problem involves “constitutional patriotism”—that is, a common identity based on shared liberal ideals of human rights and equal dignity. European identity would be based not on an ethnic volk but on a shared set of political commitments.

This shift in the nature of political identity resonates in America, where national identity has long rested on a form of constitutional patriotism. A similar solution may revive political identities at the state level that have waned as states become both more ethnically heterogeneous internally and more similar to one another in their ethnic and  religious makeup. Massachusetts might build a distinctive political identity based on tolerance of alternative lifestyles and a more generous set of social rights, and California might distinguish itself by its commitment to the environment. 

Not all state-based brands of constitutional patriotism would be progressive. Texas might gravitate toward rugged individualism and a commitment toward traditional notions of punitive justice.  But states need not be uniformly—or even predominantly—progressive in order to fulfill their functions as laboratories of progressive change. The critical thing is that individual states have the freedom to make their own policy choices and the ability to mobilize the loyalties of their citizens around those choices. If the progressive constitutional visions articulated in the 2020 volume are to be realized, many of those reforms will have to start in the states.
Ernest A. Young is Alston & Bird Professor of Law at Duke Law School. He will be appearing on Saturday's "Localism and Democracy" panel with Rich Schragger (University of Virginia School of Law, "Federalism All-the-Way-Down"), Ilya Somin (George Mason University School of Law, "The Peril and Promise of Federalism in the 21st Century"), and Ethan Leib (University of California Hastings College of the Law, "Constitutional Conventions: Getting 20/20 Vision About Them by 2020").


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