I thank Prof. Kurt Lash for engaging my work with Robert Cooter on collective action federalism. And I am grateful to Prof. Eugene Volokh for giving me the opportunity this week to blog about the theory and to respond to some of Prof. Lash’s criticism. It speaks volumes about Prof. Volokh that he provides a platform for multiple points of view.
In this, my final post, I will question how Prof. Lash frames the debate in which he is intervening. It is easy to lose sight of the framing when scholars air disagreements about what a certain Framer said, what he meant when he said it, and when he uttered the words. In scholarship, as in litigation, sometimes the framing is critical.
According to Prof. Lash, the choice (as he writes in his article) is between “limited textual enumeration and the need for judicial maintenance of the line between federal and state authority” on the one hand, and Resolution VI on the other, which (according to its advocates) “rejects textual or federalism-based limitations on federal power and instead authorizes Congress to regulate all collective action problems of national importance.”
Similarly, Prof. Lash writes that a collective action approach to the clauses of Article I, Section 8 “would remove all subject matter or categorical boundaries to the scope of federal power.” He continues:
Under the interpretive principle of Resolution VI, courts should not be interpreting text and precedent in a manner that maintains a line between state and federal responsibilities. Instead, courts should simply determine whether the matter involves an issue of national importance beyond the “competency” of the individual states. Under this approach, all congressionally identified “collective action problems” by definition fall within the constitutional powers of Congress, regardless of subject matter and regardless of the intrusion into matters traditionally left to state control.
In Prof. Lash’s view, a collective action approach, if adopted, “would mark a dramatic departure from the current jurisprudence of the United States Supreme Court.”
In sounding the alarm about a “move from a system of judicially limited enumerated power to one of majoritarian oversight of national ‘harmony,’” Prof. Lash does not accurately describe the work of Akhil Amar, Jack Balkin, Andrew Koppelman, Donald Regan, Robert Stern, and others. Nor does he accurately describe my work on collective action federalism with Robert Cooter. As I wrote in my previous posts, the theory is compatible with judicial enforcement of limited, enumerated powers. For example, a collective action approach justifies the commerce power holdings in Lopez and Morrison and reconciles them with the holdings in Wickard and Raich.
A collective action approach does not render commerce power cases effectively nonjusticiable just because Congress can assert the existence of a significant problem of collective action among the states, however implausible the assertion. Collective action federalism is a theory of limits on federal power, not just a theory of licenses to legislate.
Part of the disconnect may arise because Prof. Lash misconceives of a collective action problem among the states as “the mere failure of individual state action on an issue of national interest.” An interstate collective action problem arises when a problem disrespects state borders in the sense that there are spillover effects in other states, meaning that states impose significant costs on one another without paying for them. As Robert Cooter and I discuss in our article, there will certainly be disagreements about the presence and significance of interstate collective action problems. But resolution of these disagreements is not a simple matter of congressional assertion.
Nor does collective action federalism render the language of Section 8 irrelevant or superfluous. For one thing, much of the language in Section 8 evidences the structural principle that animates the theory. The principle, in other words, is partially derived from the language. For another thing, some of the language is not amenable to a collective action interpretation.
For example, the theory interprets the phrase “among the several States” in the Commerce Clause; it does not purport to construe the meaning of the word “Commerce.” The theory is compatible with different understandings of that key term. If one adopts the Supreme Court’s economic/noneconomic categorization, federal regulation of noneconomic problems of collective action among the several states is beyond the scope of the commerce power. Whether the regulation falls within the scope of another clause in Section 8 depends on the proper interpretation of that clause.
Robert Cooter and I offer an unconventional interpretation of the General Welfare Clause, according to which Congress has at least some authority to regulate (and not just tax and spend money on) noneconomic problems of collective action. But whether we are right or wrong turns on the proper interpretation of Clause 1, including whether the text can bear such an interpretation and whether some taxes and regulations are materially equivalent. Whether we are right or wrong does not turn on Resolution VI. Moreover, one can reject our interpretation of Clause 1 while still accepting the rest of our structural account of Section 8.
I do agree that a collective action approach, if adopted explicitly, would likely result in very broad but not limitless federal power. The United States today is a country characterized by demilitarized state borders and substantial interstate mobility of persons and things. But it is inaccurate to describe such a state of affairs as “a dramatic departure from the current jurisprudence of the United States Supreme Court.” A constitutional regime of very broad but not limitless federal power is the regime in which we live.