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Federalism vs. Decentralization:

Malcolm Feeley and Edward Rubin have published an important new book that expands on their previous scholarship arguing that "federalism" - defined as a constitutional guarantee of autonomy for subnational governments - is undesirable in the modern United States. For a sympathetic summary of the book's thesis, see this post by Sandy Levinson. Unlike some other critics of federalism, Feeley and Rubin are not advocates of comprehensive political centralization. Rather, they argue that all the putative benefits of federalism can be better achieved through what they call "decentralization." Even if states lack any constitutional guarantees insulating them from control by the central government, a rational central legislature can allow certain decisions to be made by the states as a matter of policy. Thus, if state officials would make certain decisions better than Washington, Congress can simply allow them to do so as a matter of policy. There is no need, Feeley and Rubin contend, for constitutional guarantees of federalism. Indeed, such guarantees are actually harmful, since they might hamstring congressional efforts to respond to changing conditions.

The major flaw in Feeley and Rubin's argument is that Congress has little or no incentive to pursue anything approaching optimal levels of decentralization. To the contrary, there is likely to be a strong tendency to expand federal power far beyond that point. Federal officials have strong incentives to expand the scope of their power, and numerous interest groups would like to impose uniform rules that prevent dissenting states from going against policies that they advocate. Some scholars argue that overcentralization can be prevented by state governments exercise of their political influence, since they can lobby Congress to limit its infringements on their powers. However, as John McGinnis and I discussed in this article, state governments themselves often have strong incentives to support overcentralization, especially if expansions of federal power are coupled with increased federal subsidies to the states. Others claim that the growth of federal power can be checked by voters, who might punish excessive centralization at the ballot box. But, as McGinnis and I explain, most voters are "rationally ignorant" and have little or no understanding of federalism issues; they are therefore unlikely to effectively check the overexpansion of federal power.

More fundamentally, Feeley and Rubin's argument can be used to justify eliminating virtually any constitutional restraints on government power. If Congress can be trusted to rationally determine the optimal use of its own authority, then we don't need constitutionally mandated protection for speech, religion, the rights of criminal defendants, and so on. Even if there were no Fourth Amendment constitutional restrictions on the use of search and seizure, for example, a rational Congress can enact appropriate statutory limits on law enforcement authority. In reality, however, constitutional restrictions on government power are needed precisely because the government is not always trustworthy, and is prone to various systematic pathologies. Overcentralization is one of them.

Some would argue that limits on central government power have few or no benefits, and that federalism is undesirable for that reason. That is an argument for another day (or at least another post). Feeley and Rubin, with their support for "decentralization" don't fall into that camp. Unfortunately, they fail to prove that Congress can be trusted to promote decentralization without the imposition of constitutional limits on its authority.

David Welker (www):

Federal officials have strong incentives to expand the scope of their power


I sometimes think you operate at a level that is too abstract for your own good. I vaguely remember specific examples of Senators and Representatives advocating to maintain state prerogatives. (I am not going to look up specific examples right now, but merely say I have seen it.) How do you explain that? Are such Senators and Representatives acting irrationally?

Overall, I think that the real incentives that motivate the Federal officials that matter here (i.e. members of Congress) are ideological and thus varied. I think for those Senators and Representatives who are ideologically committed to having certain powers exercised at the state level, that there "incentives" (here, to advance their world view) would in fact lead them to so vote.

Now, of course, you might argue that these incentives would be "inadequate" because the powers that YOU personally would like to see exercised by the states would not be so exercised. My response. Tough. That is democracy. Like any other argument, you would have to win that on the merits.

Another point. Although cities and states are not necessarily protected by state Constitutions, state legislatures nonetheless delegate very important policy decisions to them. Why wouldn't state legislatures have the same centralizing incentives that you posit for Congress? Answer: Actually, the incentives that move legislatures are much more complex than a desire to centralize all power. It is the same with Congress.

I am not saying that there would be no tendency whatsoever to centralize power. However, I am not sure that whatever tendency does exist should be called "over-centralization." At what point something is excessively centralized versus excessively decentralized is far from clear. Perhaps such decisions should be left to the political branches? Why do you trust judges so much?

Anyway, I should be clear. I am perfectly happy with a robust Federalism such as we currently enjoy. But, I am not finding your arguments here to be excessively persuasive, that is all.
4.16.2009 2:37am
David Welker (www):

But, as McGinnis and I explain, most voters are "rationally ignorant" and have little or no understanding of federalism issues; they are therefore unlikely to effectively ensure that power is not too decentralized.


Ignorance cuts both ways. I have noticed that you always seem to think that the ignorance of the voters always works in your favor. It really isn't so clear.

And is submitting the decision to judges who are ultimately appointed by the political branches really going to protect the values you advocate.

A final point. The judiciary is ultimately controlled by the political branches. If the political branches lost all respect for Federalism, in the long run, the judiciary would follow. Also, greater Federal power means more jurisdiction for Federal judges. Why are you so trusting of judges? (Actually, my real question is why are you so cynical about everyone else.)
4.16.2009 2:44am
Ilya Somin:
I vaguely remember specific examples of Senators and Representatives advocating to maintain state prerogatives. (I am not going to look up specific examples right now, but merely say I have seen it.) How do you explain that? Are such Senators and Representatives acting irrationally?

Senators and Representatives occassionally say things like that. But the overall tendency is for them not to take federalism seriously. Certainly, rarely if ever are any significant number of them willing to vote against an expansion of federal power they favor on policy grounds in order to maintain "state prerogatives".

Overall, I think that the real incentives that motivate the Federal officials that matter here (i.e. members of Congress) are ideological and thus varied. I think for those Senators and Representatives who are ideologically committed to having certain powers exercised at the state level, that there "incentives" (here, to advance their world view) would in fact lead them to so vote.

I suspect that ideology matters far less to most senators and representatives than getting reelected. And reelection is aided by the expansion federal power because it gives them control of more resources and powers that can be used to buy the support of interest groups and voters.

Another point. Although cities and states are not necessarily protected by state Constitutions, state legislatures nonetheless delegate very important policy decisions to them. Why wouldn't state legislatures have the same centralizing incentives that you posit for Congress? Answer: Actually, the incentives that move legislatures are much more complex than a desire to centralize all power. It is the same with Congress.

First, state legislatures often impose very tight constraints on local autonomy - a point Rubin and Feeley actually make in their book. Second, where they do not, that is often the result of state constitutional protections for local autonomy. Third, overcentralization at the state level is partly constrained by foot voting. Not so at the federal level.

Now, of course, you might argue that these incentives would be "inadequate" because the powers that YOU personally would like to see exercised by the states would not be so exercised. My response. Tough. That is democracy. Like any other argument, you would have to win that on the merits.

This argument, of course, is really an argument against any constitutional limitations on government power. Perhaps all of them should be left up to "democracy." In this issue, the argument is particularly inapt because the entire question is what level of democratic government (federal or state) will get to determine a particular issue. Appeals to "democracy" in the abstract can't resolve that sort of issue.
4.16.2009 2:50am
Ilya Somin:

But, as McGinnis and I explain, most voters are "rationally ignorant" and have little or no understanding of federalism issues; they are therefore unlikely to effectively ensure that power is not too decentralized.



Ignorance cuts both ways. I have noticed that you always seem to think that the ignorance of the voters always works in your favor. It really isn't so clear.


My argument here is that political leaders have incentives to overcentralize. Voters, due to their ignorance, mostly don't care much about centralization either way. Thus, they won't check the tendency to overcentralize. If there was instead a tendency to undercentralize, they probably wouldn't check that either. But that fact doesn't undermine my argument unless one shows that such undercentralization actually exists.
4.16.2009 2:52am
Ilya Somin:
And is submitting the decision to judges who are ultimately appointed by the political branches really going to protect the values you advocate.

A final point. The judiciary is ultimately controlled by the political branches. If the political branches lost all respect for Federalism, in the long run, the judiciary would follow. Also, greater Federal power means more jurisdiction for Federal judges. Why are you so trusting of judges?


In the past part of the linked article, McGinnis and I explain why judges have somewhat better incentives than Congress. Unlike congress, they don't derive political and electoral benefits from increasing federal power. Nor do they necessarily benefit from increasing federal jurisdiction (which tends to increase their workload, without increasing compensation). Of ocurse, I don't claim that judges will always get federalism right, or even come close to it. I just contend that judicial review can improve the situation relative to unconstrained Congressional power.
4.16.2009 2:55am
David Welker (www):
Alright. I am going to just have to agree with you. Which is somewhat rare.

I agree with Constitutional protections for Federalism enforced, where appropriate, by Federal judges (and let us not forget that members of the political branches are supposed to uphold the Constitution too). I am not so sure about your "reelection trumps ideology" point. (In fact, I don't think that is true.) But, I tentatively agree that there is a tendency towards centralization and that the Constitution is needed to check that.
4.16.2009 3:04am
Splunge:
I am not so sure about your "reelection trumps ideology" point

It totally blows my mind that someone who's voted in more than two elections can write that.
4.16.2009 5:34am
mga2 (mail):
After Raich, there are no constitutional limits on Congress' power to do whatever it pleases.
4.16.2009 9:02am
Joe T Guest:
After RaichWickard, there are no constitutional limits on Congress' power to do whatever it pleases.

Fixed.
4.16.2009 12:38pm
Mr. Mandias (mail) (www):
The lack of identification doesn't undermine the case for federalism.

But it undermines the real political prospects of federalism. It means federalism is just an abstract argument, not an emotional one. Which means federalism will lose every time.

See here.
4.16.2009 3:31pm
frankcross (mail):
Ilya, we know as a matter of empirical fact that without federalism, the national government will have a larger share of budget and power. However, without federalism, local governments will also have a larger share of budget and power. It is clearly true that real decentralization of power to local governments is reduced by federalism.
4.16.2009 3:52pm
Rod Blaine (mail):
> 'rarely if ever are any significant number of them willing to vote against an expansion of federal power they favor on policy grounds in order to maintain "state prerogatives".'

Barry Goldwater did, on the 1964 Civil Rights Act.

And look what that did for his reputation.
4.16.2009 8:23pm
Tritium (mail):
There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered that this can not be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be, regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than those which are not fundamental.

It's all there... it's not as complex as some make it out to me. It's simple. God Created Man, Man Created Government, and Gocvernments makes Corporations by law, if such an authority is granted. Presently, Corporations influence government, Government restricts the thing it was instituted to secure and protect. Does that mean that the Almighty God is next to fall to his creation?
4.17.2009 12:10am
markm (mail):
I stopped reading at "a rational central legislature". Any theory that includes that is too far removed from the real world to be worth considering.
4.18.2009 10:04am

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