Our Regionalism

This article provides an account of Our Regionalism to supplement the many accounts of Our Federalism. After describing the legal forms regions assume in the United States — through interstate cooperation, organization of federal administrative agencies, and hybrid state-federal efforts — it explores how regions have shaped American governance across the twentieth and early twenty-first centuries. In the years leading up to the New Deal, commentators invoked regions to resist centralization, arguing that state coordination could forestall expansion of the federal government. But regions were soon deployed to a different end, as the federal government relied on regional administration to develop its bureaucracy. Incorporating regional accommodations and regional organization into new programs allowed the federal government to expand its role in domestic policymaking. As interstate regionalism yielded to federal regionalism, the administrative state was propelled forward by a strategy that had arisen to resist it. Even as regions facilitated the expansion of the New Deal administrative state, however, the regional organization and argument that underpinned this development left room for state influence within federal programs and for new projects of multistate and joint state-federal governance. The century’s next regional moment brought this potential to the fore, with regions brokering the resurgence of the states in Great Society programs. In the early twenty-first century, new regional undertakings have been celebrated as fluid, nonhierarchical networks. Although the network metaphor has been exhausted, this characterization anticipates the emergence of “regionalism without regions”: collaborations among multiple state and federal actors that need not involve contiguous areas. Just as regional improvisation has responded to governance challenges of past decades, this nascent development responds to today’s polarized partisanship. It betokens both the revival and the transformation of the political sectionalism that has always informed American regionalism even as it slipped behind an administrative veneer for much of the twentieth century

Unbundling Federalism: Colorado\u27s Legalization of Marijuana and Federalism\u27s Many Forms

This short essay, prepared for the Ira C. Rothgerber, Jr. Conference on Constitutional Law, argues that various attributes we associate with federalism should not be deemed necessary components of federalism as a definitional or normative matter. Using Colorado’s recent legalization of marijuana as a case study, I show how two such attributes – an autonomous realm of state action and independent state officials with distinctive interests – can be pulled apart. State officials often further their interests and effectively oppose federal policy when they participate in the same statutory scheme as federal actors instead of operating in a separate, autonomous sphere. At the same time, state officials frequently rely on the autonomous lawmaking and executive powers of state governments to advance a decidedly national agenda, acting in cooperation with federal officials rather than independently of them. Unbundling federalism helps us get purchase on these pervasive practices instead of dismissing them as not-federalism

Administrative States: Beyond Presidential Administration

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors. States complicate each piece of this story. In critical respects, federalism further strengthens presidential administration. Waivers, grants, nonpreemption of state law, and other intergovernmental techniques enable Presidents to effectuate policy agendas when federal agencies lack sufficient authority. States also furnish durability because their policies may outlast a President’s tenure when federal policies do not. At the same time, federalism diversifies administration and broadens its representative base. Defenses of presidential power as “accountable” and “effective” sound increasingly empty, if not dangerously autocratic. Yet it is easier to condemn presidential administration than to locate alternatives that connect the administrative state to electoral politics and representative institutions as well as to expertise and deliberation. Because state legislators and governors may furnish these connections, plural administrative states offer the most promising path forward for the contemporary administrative state

From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. Lacking an autonomous realm of action, states infuse federal law with diversity and competition, aligning themselves with certain federal actors to oppose others. States also participate in national political contests on behalf of Americans both inside and outside their borders. They facilitate competition between the Democratic and Republican parties and offer staging grounds for national networks seeking to advance their agendas through direct democracy. Instead of focusing on state autonomy and distinctive interests, we should accordingly recognize contemporary American federalism as an expression of our multifarious nationalism. This need not lead us to answer Corwin’s question in the negative: precisely because states are disaggregated sites of national governance, not separate sovereigns, they continue to serve as vital cells of “democratic sentiment, impulse, and action.

The Rites of Dissent: Notes on Nationalist Federalism

This essay responds to Heather Gerken’s Childress Lecture, Federalism and Nationalism: Time for a Détente? It first outlines two possible understandings of Gerken’s claim that federalism can be good for nationalism, taking the national to refer either to the federal government or to a cohesive American community. The first understanding would suggest that federalism enhances the power of the federal government, that devolution ultimately yields centralization. The second understanding would suggest that federalism domesticates conflict so as to unify a national polity. This essay rejects both of these accounts and instead sketches a view of the national as ineluctably plural and of states as sites of national diversity and contestation

From Sovereignty and Process to Administration and Politics: The Afterlife of American Federalism

Announcing the death of dual federalism, Edward Corwin asked whether the states could be “saved as the vital cells that they have been heretofore of democratic sentiment, impulse, and action.” The federalism literature has largely answered in the affirmative. Unwilling to abandon dual federalism’s commitment to state autonomy and distinctive interests, scholars have proposed new channels for protecting these forms of state-federal separation. Yet today state and federal governance are more integrated than separate. States act as co-administrators and co-legislatures in federal statutory schemes; they carry out federal law alongside the executive branch and draft the law together with Congress. Lacking an autonomous realm of action, states infuse federal law with diversity and competition, aligning themselves with certain federal actors to oppose others. States also participate in national political contests on behalf of Americans both inside and outside their borders. They facilitate competition between the Democratic and Republican parties and offer staging grounds for national networks seeking to advance their agendas through direct democracy. Instead of focusing on state autonomy and distinctive interests, we should accordingly recognize contemporary American federalism as an expression of our multifarious nationalism. This need not lead us to answer Corwin’s question in the negative: precisely because states are disaggregated sites of national governance, not separate sovereigns, they continue to serve as vital cells of “democratic sentiment, impulse, and action.

Federalism All the Way Up: State Standing and The New Process Federalism

This commentary considers what federalism all the way up means for Gerken’s proposed new process federalism. The state-federal integration she documents underscores why judicial policing of “conditions for federal-state bargaining” cannot be limited to state-federal relations in the traditional sense. It must extend to state challenges to the allocation and exercise of authority within the federal government. The new process federalism would therefore do well to address when states will have standing to bring such cases in federal court. After Part I describes contemporary federalism-all-the-way-up litigation, Part II suggests that Gerken’s “Federalism 3.0” complicates both traditional parens patriae and sovereignty arguments for state standing but lends force to the recognition of states’ representative role within federal schemes

Edith Wharton, Privacy, and Publicity

It\u27s the woman\u27s soul, absolutely torn up by the roots-her whole self laid bare .... I don\u27t mean to read another line; it\u27s too much like listening at a keyhole. When Mrs. Touchett speaks these words in Edith Wharton\u27s early novella, The Touchstone, we may wonder whether Wharton is mocking her own voyeuristic readership and grappling with her tenuous privacy as a professional female author. Despite her protestations, Mrs. Touchett has relished reading the letters of Mrs. Aubyn, a deceased novelist whose former lover, Stephen Glennard, has published her correspondence. It is precisely because these love letters (or unloved letters as Mrs. Touchett characterizes them) promise to reveal the private truth of a woman\u27s life that they have become such a sensational bestseller. Perhaps avenging the version of herself that is Mrs. Aubyn, Wharton refuses to show her own readers the published letters, but she has sparked our curiosity, which instead clings to Glennard\u27s life, or even to Wharton\u27s. Indeed, The Touchstone presciently anticipates questions of privacy, publicity, and personality that would underlie Wharton\u27s mature fiction, her interpersonal relationships, and her very conception of herself. By probing these issues through the lens of an author\u27s intimate correspondence, she both gestures to her own concerns about privacy as a female writer and enters a raging legal debate launched a decade earlier